Upcoming Event: Jeffrey Fontana Park Annual Spring Spruce Up Event

Date:  Saturday, May 20, 2017
Time:  8:45 am registration  |  9:00 am to 11:00 am in the Garden
Location:  Jeffrey Fontana Park, corner of McAbee and Golden Oak Way

Join your fellow REALTORS® as we honor Officer Fontana’s memory by sprucing up his garden for the summer blooms! We will be spreading mulch, weeding, trimming tree suckers and fertilizing. Bring gloves if you have your own. Wear long sleeves and pants to protect from thorns. All tools and supplies (including gloves) are supplied by Martin-Fontana Parks Association. Refreshments will be supplied by MFPA to sustain your efforts!



Recap: Member Appreciation Baseball Night

On April 19, The Santa Clara County Association of REALTORS® hosted a Member Appreciation Baseball Night at a San Jose Giants Game. Members came out to the ballpark early and enjoyed a free tailgate — tacos and drinks galore! A few hours later everyone entered the ballpark and watched our President, Rick Smith, throw out the first pitch at the game (see below for video). Thank you to all the members that came out and made it a truly memorable night. See you all next year!



Photos from the game:

Wood Smoke Reduction Incentive Program

The Wood Smoke Reduction Incentive Program was developed by the Bay Area Air Quality Management District to improve local air quality and reduce wintertime particulate matter pollution by helping Bay Area homeowners and landlords replace their wood-burning heating devices with cleaner options.

To be eligible, applicants must own a property that (1) is a residential unit located within the Air District’s jurisdiction, and (2) contains an operational wood-burning stove or fireplace, used for heating purposes. Qualifying wood-burning devices do not include those meant for cooking purposes.

Applicants may apply for one project option per property. Project options and base award for each project option are listed below:

In addition to the base funding shown above, applicants may be eligible to receive additional funding if they or their property meet one or more of the following Highly Impacted Resident conditions shown below:

For more information and to learn how to apply, visit the Bay Area Air Quality Management District website.

Santa Clara County Local Disclosures

Bay Area Air Quality Management District – Residential Fireplace Disclosure

Effective June 1, 2016, Regulation 6, Rule 3, Section 304 requires anyone who is selling, renting or leasing property in the nine counties of the Bay Area that has a wood-burning device to disclose health hazards of PM2.5. To comply with the requirements of the rule, the Air District prepared the enclosed “Residential Fireplace Disclosure.” Disclosures must be signed and dated by the buyer or renter upon receipt. Additional information on the health hazards of burning wood may be considered if approval is obtained from the Air District. All requests for approval to meet June 1, 2016 requirement must be received by May 1, 2016.

Click here to see the full disclosure.

BAAQMD Jurisdictions

Alameda County

Contra Costa County

Marin County

Napa County

San Francisco City and County

San Mateo County

Santa Clara County

Solano County (southwest portion only)

Sonoma County (southern portion only

Jurisdiction Information: http://www.baaqmd.gov/in-your-community

San Jose – Street Tree Disclosure

Municipal Code: 13.28.130.B. and 13.28.190

During the sale or transfer of a residential real property, the seller must disclose to the buyer if the property complies with the city’s street tree maintenance and replacement requirements of Sections 13.28.130.B. and 13.28.190. The City disclosure form generally requires that the property must have one street tree for any adjacent street (if it is an interior lot) and at least three street trees if it is a corner lot.

San Jose Tree Policy Manual: http://www.sanjoseca.gov/DocumentCenter/View/8968

 Saratoga – Connection to Public Sanitary Sewer or Inspection of Private On-Site Sewage Disposal System Upon Transfer of Ownership of Property

Municipal Code: 7-10.070 – Section B11-13.2

No person shall transfer or convey more than 50 percent of the ownership interest in any real property, residence, place of business, or other building, located within 200 feet of an available approved public sanitary sewer, and upon which a private on-site sewage disposal system exists, without first providing for connection to the approved public sanitary sewer to the satisfaction of the City, as a condition to close of escrow or transfer of ownership of the subject property. No person shall sell, transfer, or convey more than 50 percent of the ownership interest in any real property, residence, place of business, or other building located in excess of 200 feet of an approved public sanitary sewer, upon which a private on-site sewage disposal system exists, without first obtaining an inspection of the sewage disposal system and written report summarizing the results of the inspection.

Saratoga – Occupancy Inspections

Municipal Code: Article 16-71

Transfer of ownership of any real property, except a site having a single-family dwelling (detached dwelling unit, condominium or townhouse unit) as the main structure thereon requires an occupancy inspection. No transfer of ownership shall be invalidated as a result of the failure to arrange for a prior occupancy inspection, but such inspection may be initiated and conducted by the City at any time after discovery by the building official that the transfer has occurred. The obligation to take corrective action, as described in Section 16-71.040, shall be imposed upon the current owner of the real property or business. Occupancy inspections shall be conducted by the City upon a request and appointment being made by the owner or occupant of the real property or the owner or operator of the business. Where an occupancy inspection is being made in connection with the transfer of real property, the entire site to be transferred shall be inspected. Where the occupancy inspection is being made in connection with the establishment or transfer of a business or a change of use, the premises where such business or use is conducted shall be inspected. The occupancy inspection shall be made for the purpose of determining whether the real property or premises and the proposed use thereof comply with all applicable zoning regulations of the City, all applicable state and local building codes and regulations, all applicable federal, state and local statutes, ordinances, and rules and regulations pertaining to hazardous materials or hazardous wastes. Within 10 days after completion of the inspection, the building official shall issue an inspection report to the person who originally requested the inspection or to the owner of the property if no prior request was made. The report shall also be made available to any other person requesting a copy thereof. The inspection report shall be effective for a period of 18 months from the date of the report. If the intended transfer of ownership or establishment of business or change of use is not accomplished within such period of time, an updated report must be obtained from the building official. Upon a determination by the building official that a violation of any statute, ordinance exists, the building official may order such corrective work to be performed as he deems necessary or appropriate to protect the health or safety of the occupants of the structure and the general public. The corrective work shall be commenced and completed within such times as specified by the building official. Unless authorized by the building official, no business license may be issued or change of use established until the corrective work has been completed to the satisfaction of the building official.

 Sunnyvale – Storm Water Management, Agreement to Maintain

Municipal Code: Chapter 12.60.200

Any land owner of a property which has been required under Chapter 12.60 (generally projects greater than 10,000 square feet of construction of any impervious space since 2001, greater than 5,000 square feet after December 1, 2011, and greater than 2,500 square feet after December 1, 2012) to construct or install and maintain such best management practices (structural device, measure, facility, or activity) shall, upon transferring ownership of such property, provide the new owners with a current copy of chapter 12.60, and shall inform the new owners in writing of their obligation to properly operate and maintain such stormwater treatment and/or source control best management practice.

Heather Wills joins SCCAOR as Events Coordinator

Heather Wills has joined SCCAOR as our new Events Coordinator. She will handle the planning, promotion, and execution of SCCAOR’s many well-known events.

“I am very excited to be joining SCCAOR,” she said. “I look forward to using my previous experience to excel in this role and add value to all the Association’s events.”

Some of the events that Heather will manage include SCCAOR’s Installation event each January, the Member Appreciation Baseball game, the Golf Tournament, the Member Appreciation BBQ, the Convention & Trade Show, the Holiday Member Appreciation Party, and all the General Membership Meetings throughout the year.

She will work directly with Hilda Ramirez, SCCAOR’s Director of PR, Education, and Events. “Heather is a great addition to the team,” said Ramirez. “Her vast knowledge of the real estate industry coupled with her drive and determination make her the ideal person for this role.”

Wills is joining SCCAOR after working for Coldwell Banker as a Marketing Coordinator for the last ten years. In her free time, she enjoys outdoor activities like hiking and spending time with her family.

New California Supreme Court Ruling and the Implications for Dual Agency

by Tony Ventura and Alexandria Kavalaris

A recent California Supreme Court ruling has potentially far-reaching implications for brokers acting as dual agents in a real estate transaction. On November 21, 2016, the California Supreme Court issued a ruling in Horiike v. Coldwell Banker Residential Brokerage Company, holding that a real estate agent representing a seller owes a fiduciary duty to a buyer in the transaction when the listing and buying agents are licensed under the same broker.

The genesis of the lawsuit was the purchase of a Malibu mansion in which Coldwell Banker acted as a dual agent. The buyer, Hiroshi Horiike, was represented by a Coldwell Banker agent in Beverly Hills. The property was listed by a Coldwell Banker agent from another office. Before completing the purchase, Mr. Horiike signed two agency disclosure forms required by California law (See Civ. Code §§2079.14; 2079.16; 2079.17), as well as the “Consent for Representation of More Than One Buyer or Seller” form.

The dispute arose after Mr. Horiike purchased the property and discovered that the property’s living area was actually 9,434 square feet, as opposed to the “approximately 15,000 square feet of living area” represented in the listing agent’s marketing materials for the property. Mr. Horiike sued the listing agent on the basis that both the agent and the broker Coldwell Banker breached their fiduciary duty by failing to advise him to hire a third party to verify the actual square footage.

The case was tried before a jury and at the close of the case, the listing agent moved for nonsuit as to the breach of fiduciary duty cause of action on the basis that the listing agent exclusively represented the seller in the transaction and therefore did not owe a fiduciary duty to Mr. Horiike. The trial court granted the motion for nonsuit as to the listing agent, and instructed the jury that, in order to find Coldwell Banker liable for breach of fiduciary duty, the jury had to find that a Coldwell Banker agent other than the listing agent (who the trial court found did not owe a fiduciary duty) or the buyer’s own agent (who was never sued) had breached a fiduciary duty to Mr. Horiike. The jury then returned a special verdict in favor of Coldwell Banker on all causes of action.

The Court of Appeals reversed the judgment on the breach of fiduciary claim against the listing agent and Coldwell Banker, concluding that the listing agent, as a salesperson working under Coldwell Banker’s license, owed a duty to Mr. Horiike “equivalent” to the duty owed to him by Coldwell Banker. The court reasoned that because Coldwell banker acted as the dual agent of the buyer and seller in the transaction, it owed a “fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with either the seller or the buyer.” Observing that the listing agent executed the forms on behalf of Coldwell Banker as its associate licensee, the court held that the listing agent owed the same duty to Mr. Horiike and had breached that duty by failing to communicate all of the material information he knew about the square footage, including the apparent contradiction between the marketing materials and the square footage in the public record documents.

Upon appeal to the California Supreme Court, the sole question before the Court was whether the listing agent, as an associate licensee for Coldwell Banker in the sale of the Malibu residence, owed a duty to Mr. Horiike to take certain measures to inform him about the property’s square footage: specifically, to investigate and disclose all facts materially affecting the property’s value or desirability, regardless of whether those facts could have been discovered by Mr. Horiike and his agent.

The Supreme Court affirmed the appellate court’s ruling, finding that listing agents owe fiduciary duties to the buyer when both buyers and sellers are represented by agents from the same brokerage. The Court reasoned that an agent’s relationship is derived from the agency relationship between the broker and the client. As such, the relationship between the broker and agent cannot be uncoupled.

This ruling further complicates the controversial real estate practice of dual agency, which is allowed by California law, but creates a situation in which one person must act as the agent of two parties whose interests inherently conflict. While this inherent conflict cannot fully be resolved, the take-away from the Supreme Court’s ruling in Horiike is as follows: the primary difference between the disclosure obligations of an exclusive representative of a seller and a dual agent is the dual agent has a duty to learn and disclose facts material to the property’s price or desirability, including those facts that might reasonably be discovered by the buyer.

That said, the Court acknowledged that more difficult questions about the scope of a real estate salesperson’s fiduciary duties when functioning as a dual agent may be raised in future litigation. For example, does the dual agent need to disclose confidential information obtained from the seller or otherwise compromise the agent’s ability to fulfill obligations to the seller? These are questions for another day. At present, the Supreme Court ruling underlines the fact that real estate agents in a dual agency transaction must be careful to observe their fiduciary duties to both the buyer and the seller and must carefully consider the risks of dual agency transactions in general.

If you have further questions regarding copyright issues, please feel free to contact either Tony Ventura or Alexandria Kavalaris at Ventura Rossi Hersey & Muller, LLP.

Call for Action — Tell the San Jose City Council: Don’t Impose Expensive New Mandates on Rental Property Owners

In the City of San Jose REALTORS® and their clients own many rental properties and play a vital role in providing safe well-maintained housing. On Tuesday, April 18th the San Jose City Council will consider new measures that attempt to make housing more affordable; instead, the proposals make the costs of maintaining and managing rental property more uncertain and expensive for good tenants and landlords alike, while giving bad actors the tools to abuse the new laws. SCCAOR supports efforts to help renters in San Jose, but does not believe costly mandates make housing more affordable for all.

The Ellis Act Ordinance:

  • Under the Ellis Act, if you choose to redevelop your property but continue to operate it as a rental property, all the replaced units and any additional units you might add will be subjected to rent control. Tell the Council to support policies that add more housing not limit it. Ask them to exempt new units from the rent control law.
  • If you choose to redevelop your rent controlled property as for sale housing you will be required to pay out each tenant thousands of dollars. This is on top of other development fees and costs the city already imposes.
  • Read the proposed Ellis Act Ordinance by clicking here.
The Tenant Protection Ordinance:
  • Tenants have the ability to file frivolous claims for repair because the City does NOT require verification that the claims are legitimate. This will grant tenants the ability to file frivolous claims to extend their just cause protection endlessly.
  • Tenants have no responsibility to prove that any claims they make are true, they are essentially given unlimited protection under this new law. The burden of proof is on the landlords to prove the tenants are being truthful.
  • Under this law, a landlord would have to provide evidence of a lease violation or proof that an illegal act was committed to evict a tenant. This harms a landlord’s ability to keep their good tenants safe from their bad ones.
  • Read the proposed Tenant Protection Ordinance by clicking here.

How Can You Help?

Attend the San Jose City Council Meeting on April 18th
200 E Santa Clara St, San Jose, CA 95113
When: Tuesday, April 18th at 1:30 PM

Sign the Petition: Say NO to the proposed Ellis Act and Tenant Protection Ordinance by Clicking Here.

Contact the Mayor and City Council:

Mayor Sam Liccardo (408) 535-4800 mayoremail@sanjoseca.gov
Councilmember D1 Chappie Jones (408) 535-4901 District1@sanjoseca.gov
Councilmember D2 Sergio Jimenez (408) 535-4902 District2@sanjoseca.gov
Councilmember D3 Raul Peralez (408) 535-4903 District3@sanjoseca.gov
Councilmember D4 Lan Diep (408) 535-4904 District4@sanjoseca.gov
Vice Mayor Magdalena Carrasco (408) 535-4905 District5@sanjoseca.gov
Councilmember D6 Dev Davis (408) 535-4906 District6@sanjoseca.gov
Councilmember D7 Tam Nguyen (408) 535-4907 District7@sanjoseca.gov
Councilmember D8 Syliva Arenas (408) 535-4908 District8@sanjoseca.gov
Councilmember D9 Don Rocha (408) 535-4909 District9@sanjoseca.gov
Councilmember D10 Johnny Khamis (408) 535-4910 District10@sanjoseca.gov

2017 Involvement Opportunities

No single person can lead SCCAOR.  It takes a group of very talented individuals provide their time and perspectives to guide this organization.  If you want to contribute to the continued success of SCCAOR please consider signing up for one or more of the opportunities listed in this form: 2017 Involvement Opportunities.

2017 Legislative Day

Join us on May 3rd for Legislative Day! This is your chance to travel to our State Capital with your fellow SCCAOR Members. We will be briefed on top issues currently facing the real estate industry and meet with our state legislators. The $20 registration includes a special luncheon with a guest speaker on state politics — and 100% of your registration fee will go towards the REALTOR® Action Fund.