Bill Text: CA AB2136 | 2013-2014 | Regular Session | Chaptered
Bill Title: Contracts: statute of frauds.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-07-09 - Chaptered by Secretary of State - Chapter 107, Statutes of 2014. [AB2136 Detail]
Download: California-2013-AB2136-Chaptered.html
BILL NUMBER: AB 2136 CHAPTERED
BILL TEXT
CHAPTER 107
FILED WITH SECRETARY OF STATE JULY 9, 2014
APPROVED BY GOVERNOR JULY 9, 2014
PASSED THE SENATE JUNE 26, 2014
PASSED THE ASSEMBLY MAY 15, 2014
AMENDED IN ASSEMBLY MARCH 24, 2014
INTRODUCED BY Assembly Member Daly
FEBRUARY 20, 2014
An act to amend Section 10148 of the Business and Professions
Code, and to amend Section 1624 of the Civil Code, relating to
contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 2136, Daly. Contracts: statute of frauds.
Existing law prescribes the manner in which contracts may be
created. Under existing law, certain contracts are invalid unless the
contract, or some note or memorandum of the contract, is in writing
and subscribed by the party to be charged. Under existing law, an
agreement or contract that is valid in other respects and is
otherwise enforceable is not invalid for lack of a note, memorandum,
or other writing and is enforceable by way of action or defense,
provided that the agreement or contract is a qualified financial
contract, as defined, and there is sufficient evidence to indicate
that a contract has been made, including, among other alternatives, a
written confirmation or the parties have agreed by some other means
to be bound by the terms of the qualified financial contract from the
time they reached agreement on those terms.
This bill would provide that an electronic message of an ephemeral
nature that is not designed to be retained or to create a permanent
record, such as a text message or an instant message, is insufficient
to constitute a contract to convey real property, in the absence of
a written confirmation that conforms to a specified requirement of
existing law.
Existing law requires a licensed real estate broker to retain for
3 years copies of all listings, deposit receipts, canceled checks,
trust records, and other documents executed by him or her or obtained
by him or her in connection with any transactions for which a real
estate broker license is required.
This bill would prohibit this requirement from being construed to
require retention of electronic messages of an ephemeral nature, as
described in the bill.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 10148 of the Business and Professions Code is
amended to read:
10148. (a) A licensed real estate broker shall retain for three
years copies of all listings, deposit receipts, canceled checks,
trust records, and other documents executed by him or her or obtained
by him or her in connection with any transactions for which a real
estate broker license is required. The retention period shall run
from the date of the closing of the transaction or from the date of
the listing if the transaction is not consummated. After notice, the
books, accounts, and records shall be made available for examination,
inspection, and copying by the commissioner or his or her designated
representative during regular business hours; and shall, upon the
appearance of sufficient cause, be subject to audit without further
notice, except that the audit shall not be harassing in nature. This
subdivision shall not be construed to require a licensed real estate
broker to retain electronic messages of an ephemeral nature, as
described in subdivision (d) of Section 1624 of the Civil Code.
(b) The commissioner shall charge a real estate broker for the
cost of any audit, if the commissioner has found, in a final desist
and refrain order issued under Section 10086 or in a final decision
following a disciplinary hearing held in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that the broker has violated Section 10145 or a
regulation or rule of the commissioner interpreting Section 10145.
(c) If a broker fails to pay for the cost of an audit as described
in subdivision (b) within 60 days of mailing a notice of billing,
the commissioner may suspend or revoke the broker's license or deny
renewal of the broker's license. The suspension or denial shall
remain in effect until the cost is paid or until the broker's right
to renew a license has expired.
(d) The commissioner may maintain an action for the recovery of
the cost of an audit in any court of competent jurisdiction. In
determining the cost incurred by the commissioner for an audit, the
commissioner may use the estimated average hourly cost for all
persons performing audits of real estate brokers.
(e) The bureau may suspend or revoke the license of any real
estate broker, real estate salesperson, or corporation licensed as a
real estate broker, if the real estate broker, real estate
salesperson, or any director, officer, employee, or agent of the
corporation licensed as a real estate broker knowingly destroys,
alters, conceals, mutilates, or falsifies any of the books, papers,
writings, documents, or tangible objects that are required to be
maintained by this section or that have been sought in connection
with an investigation, audit, or examination of a real estate
licensee by the commissioner.
SEC. 2. Section 1624 of the Civil Code is amended to read:
1624. (a) The following contracts are invalid, unless they, or
some note or memorandum thereof, are in writing and subscribed by the
party to be charged or by the party's agent:
(1) An agreement that by its terms is not to be performed within a
year from the making thereof.
(2) A special promise to answer for the debt, default, or
miscarriage of another, except in the cases provided for in Section
2794.
(3) An agreement for the leasing for a longer period than one
year, or for the sale of real property, or of an interest therein;
such an agreement, if made by an agent of the party sought to be
charged, is invalid, unless the authority of the agent is in writing,
subscribed by the party sought to be charged.
(4) An agreement authorizing or employing an agent, broker, or any
other person to purchase or sell real estate, or to lease real
estate for a longer period than one year, or to procure, introduce,
or find a purchaser or seller of real estate or a lessee or lessor of
real estate where the lease is for a longer period than one year,
for compensation or a commission.
(5) An agreement that by its terms is not to be performed during
the lifetime of the promisor.
(6) An agreement by a purchaser of real property to pay an
indebtedness secured by a mortgage or deed of trust upon the property
purchased, unless assumption of the indebtedness by the purchaser is
specifically provided for in the conveyance of the property.
(7) A contract, promise, undertaking, or commitment to loan money
or to grant or extend credit, in an amount greater than one hundred
thousand dollars ($100,000), not primarily for personal, family, or
household purposes, made by a person engaged in the business of
lending or arranging for the lending of money or extending credit.
For purposes of this section, a contract, promise, undertaking, or
commitment to loan money secured solely by residential property
consisting of one to four dwelling units shall be deemed to be for
personal, family, or household purposes.
(b) Notwithstanding paragraph (1) of subdivision (a):
(1) An agreement or contract that is valid in other respects and
is otherwise enforceable is not invalid for lack of a note,
memorandum, or other writing and is enforceable by way of action or
defense, provided that the agreement or contract is a qualified
financial contract as defined in paragraph (2) and one of the
following apply:
(A) There is, as provided in paragraph (3), sufficient evidence to
indicate that a contract has been made.
(B) The parties thereto by means of a prior or subsequent written
contract, have agreed to be bound by the terms of the qualified
financial contract from the time they reached agreement (by
telephone, by exchange of electronic messages, or otherwise) on those
terms.
(2) For purposes of this subdivision, a "qualified financial
contract" means an agreement as to which each party thereto is other
than a natural person and that is any of the following:
(A) For the purchase and sale of foreign exchange, foreign
currency, bullion, coin, or precious metals on a forward, spot,
next-day value or other basis.
(B) A contract (other than a contract for the purchase of a
commodity for future delivery on, or subject to the rules of, a
contract market or board of trade) for the purchase, sale, or
transfer of any commodity or any similar good, article, service,
right, or interest that is presently or in the future becomes the
subject of a dealing in the forward contract trade, or any product or
byproduct thereof, with a maturity date more than two days after the
date the contract is entered into.
(C) For the purchase and sale of currency, or interbank deposits
denominated in United States dollars.
(D) For a currency option, currency swap, or cross-currency rate
swap.
(E) For a commodity swap or a commodity option (other than an
option contract traded on, or subject to the rules of, a contract
market or board of trade).
(F) For a rate swap, basis swap, forward rate transaction, or an
interest rate option.
(G) For a security-index swap or option, or a security or
securities price swap or option.
(H) An agreement that involves any other similar transaction
relating to a price or index (including, without limitation, any
transaction or agreement involving any combination of the foregoing,
any cap, floor, collar, or similar transaction with respect to a
rate, commodity price, commodity index, security or securities price,
security index, other price index, or loan price).
(I) An option with respect to any of the foregoing.
(3) There is sufficient evidence that a contract has been made in
any of the following circumstances:
(A) There is evidence of an electronic communication (including,
without limitation, the recording of a telephone call or the tangible
written text produced by computer retrieval), admissible in evidence
under the laws of this state, sufficient to indicate that in the
communication a contract was made between the parties.
(B) A confirmation in writing sufficient to indicate that a
contract has been made between the parties and sufficient against the
sender is received by the party against whom enforcement is sought
no later than the fifth business day after the contract is made (or
any other period of time that the parties may agree in writing) and
the sender does not receive, on or before the third business day
after receipt (or the other period of time that the parties may agree
in writing), written objection to a material term of the
confirmation. For purposes of this subparagraph, a confirmation or an
objection thereto is received at the time there has been an actual
receipt by an individual responsible for the transaction or, if
earlier, at the time there has been constructive receipt, which is
the time actual receipt by that individual would have occurred if the
receiving party, as an organization, had exercised reasonable
diligence. For the purposes of this subparagraph, a "business day" is
a day on which both parties are open and transacting business of the
kind involved in that qualified financial contract that is the
subject of confirmation.
(C) The party against whom enforcement is sought admits in its
pleading, testimony, or otherwise in court that a contract was made.
(D) There is a note, memorandum, or other writing sufficient to
indicate that a contract has been made, signed by the party against
whom enforcement is sought or by its authorized agent or broker.
For purposes of this paragraph, evidence of an electronic
communication indicating the making in that communication of a
contract, or a confirmation, admission, note, memorandum, or writing
is not insufficient because it omits or incorrectly states one or
more material terms agreed upon, as long as the evidence provides a
reasonable basis for concluding that a contract was made.
(4) For purposes of this subdivision, the tangible written text
produced by telex, telefacsimile, computer retrieval, or other
process by which electronic signals are transmitted by telephone or
otherwise shall constitute a writing, and any symbol executed or
adopted by a party with the present intention to authenticate a
writing shall constitute a signing. The confirmation and notice of
objection referred to in subparagraph (B) of paragraph (3) may be
communicated by means of telex, telefacsimile, computer, or other
similar process by which electronic signals are transmitted by
telephone or otherwise, provided that a party claiming to have
communicated in that manner shall, unless the parties have otherwise
agreed in writing, have the burden of establishing actual or
constructive receipt by the other party as set forth in subparagraph
(B) of paragraph (3).
(c) This section does not apply to leases subject to Division 10
(commencing with Section 10101) of the Commercial Code.
(d) An electronic message of an ephemeral nature that is not
designed to be retained or to create a permanent record, including,
but not limited to, a text message or instant message format
communication, is insufficient under this title to constitute a
contract to convey real property, in the absence of a written
confirmation that conforms to the requirements of subparagraph (B) of
paragraph (3) of subdivision (b).
