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Rental Property How much

Selling Your Rental Property Intuit Home Intuit Products Support | Order Status | Shopping Cart Home Online Products Desktop Products Business Tips & Resources Sign In Automatic Renewal My Downloads Tax Tips & Topics Business Taxes Education & Taxes Employment Taxes Family & Taxes Homeowners & Taxes Investments & Taxes Retirement & Estate Taxes Tax Law & the IRS Tax Planning & Savings Tax Prep & Filing E-mail this Print this Selling Your Rental Property How much money am I going to make, after taxes, when I sell my rental property? Are you finally selling your rental property? Was dealing with that last tenant just more than you can stand to go through again? Did you just hear that the vacant land next to your property will be developed into a state college causing your rental property to realize a 10-fold increase in value? Are you approaching retirement and eager to liquidate your investment in order to travel the world, or just relax and take it easy? After finding a buyer and discussing a price, you may wonder what the sale will cost you in taxes and what your after-tax cash flow will be. Before you close the sale, then, you should figure out how much of your proceeds will go to Uncle Sam and how much you will be able to keep. You want to know how much cash you can expect to flow through your hands, after paying fees, costs, and taxes. How can I figure my gain ? Is my gain taxed as ordinary income or capital gain ? How do I report the sale ? What is my after-tax cash flow ? How Can I Figure My Gain? The amount you get for your rental property is the gross sales price. The first step in calculating your taxable gain is to figure out your net sales price. 1. Subtract All Your Selling Costs from the Gross Sales Price. You'll need a copy of your closing or settlement statement at hand to help you identify the costs involved in selling the property. But don't just assume that all costs on your closing statement can be considered selling costs . Pull out any rental expenses. Your closing statement may include items that were prepaid by you, such as property taxes, insurance, or homeowner's association fees. It may also include items that remain unpaid by you as of the sale date, such as rental deposits or property management fees. These items are ordinary and necessary rental expenses that you should report as part of your rental income or loss on Schedule E rather than as part of your property sale. After filtering out the rental items, add up all the selling costs; such as: Commissions on the sale Document recording costs Legal fees related to the sale Survey fees Title fees or costs Transfer fees Now, subtract your total selling costs from your gross sales price. The result is your net sales price. For example, if you have a total selling cost of $25,400, and your gross sales price is $550,000, your net sales price is $524,600. But how much of the net sales price is your profit, or taxable gain? 2. Subtract the Cost of the Property from the Net Sales Price. To figure your profit, or taxable gain on the sale, you need to subtract the cost of the property from the net sales price. But, naturally, adding up all your costs can take a little work. You need to know how much the property has cost you, starting way back when you bought it, and proceeding through the years as you made improvements (costing your more money), or took deductions for depreciation over the years (reducing your cost). The result is called your adjusted basis, because it has been heavily adjusted over the years, and it forms the basis of any calculation of profit or loss. (For more details, see The Tax Aspects of Selling Your Home . Subtract your adjusted basis in the property from the net sales price, to get your taxable gain. Example: Sally owns a rental property that she originally purchased for $320,000 (of which the portion allocable to land is $100,000), and over the years she has taken depreciation deductions of $115,667 for this property. She is considering an offer to sell the property for $450,000. She estimates that the selling costs will include real estate commissions of 6 percent and other costs of 1 percent of the sales price. Sally's net gain on the sale would be $214,167, calculated as follows: Gross sales price $450,000 Less selling costs at 7 percent 31,500 Net sales price $418,500 Less adjusted basis: Cost basis $320,000 Less depreciation allowed 115,667 Adjusted Basis 204,333 Net gain $214,167 Is My Gain Taxed as Ordinary Income or as a Capital Gain? When you sell a property you've owned for more than a year, the gain (the selling price less your selling costs and your adjusted basis in the property) is taxed at capital gains rates, which are lower than the regular income tax rates. The particular capital gains rate that's used depends on several factors. Most capital gains on sales of rental property are taxed at 15 percent but any gains due to depreciation you have already taken are taxed at 25 percent. Ordinary income, on the other hand, can be taxed with rates as high as 35 percent in 2004. Therefore, it's important to understand how much of your gain will be taxed at ordinary income tax rates and how much will be taxed at capital gains rates. Note: The tax rates addressed here are federal taxes rates only. Any state taxes that may also be due are in addition to the federal taxes. For Property Purchased in 1987 or Later If your property was purchased in 1987 or later: all of your gain will be considered capital gain, but there's a catch: while most long-term capital gains are taxed at a maximum rate of 15 percent, any portion of your gain that's attributed to any depreciation taken on your property is taxed at a special maximum rate of 25 percent. This applies to all depreciation taken on the property. (Note: Beginning in 1987, the only kind of depreciation you could take on the property was the straight-line method). Example: Continuing our example in the last section, Sally placed her rental property into service as a rental in 1988. She decided to depreciate her property on the straight-line basis over 27.5 years, so her total depreciation deductions from 1988 through 2003 amounted to $115,667. Of her $214,167 gain, $115,667 would be taxed up to the special 25 percent capital gains rate for depreciation and $98,500 would be taxed at the 15% capital gains tax rate. For Property Purchased Before 1987 If you acquired the property before 1987, the ordinary income portion of a gain on the sale of Section 1250 property consists of any additional depreciation taken on the property. Additional depreciation is accelerated depreciation that goes beyond what the depreciation would have been if it had been calculated using the straight line method. If your property was purchased before 1987 for residential rentals, additional depreciation on property acquired before 1987 is calculated for all years after 1975. For nonresidential rentals, additional depreciation is calculated for all years after 1969. The total additional depreciation (which is taxed at ordinary income tax rates) is deducted from the net gain in order to determine the amount of the gain subject to capital gains rates. This process is what's known as depreciation recapture. Essentially, because you were able to deduct depreciation expenses from ordinary income while you owned your rental property, you now pay the price at the time of sale: part of the gain on your property is taxed at ordinary income tax rates, in this case, your additional depreciation. Example: Joe purchased his rental property in 1985 for $320,000. He depreciated his property on an accelerated basis over 18 years, resulting in total depreciation deductions of $235,000. Had he used the straight-line method to calculate depreciation, his depreciation deduction would have been $229,000. Under the rules applicable to property purchased before 1987, his additional depreciation is $6,000. Assuming he sold his property for $418,500, of his $333,500 gain, $6,000 would be taxed at his ordinary tax rates and $327,500 would be taxed as capital gain. For more information see, FAQ on Capital Gains . Giving a Nod to Section 1231 Rental real estate, held for more than one year, falls under the definition of Internal Revenue Code Section 1231 and is therefore called Section 1231 property . A gain from the sale of section 1231 property can be either ordinary income to you (as a result of additional depreciation recapture if the property was purchased before 1987) or capital gain, or both. Section 1231 gains that are not subject to depreciation recapture (which is ordinary income) are long-term capital gains. Good news: If you have a loss on the sale of Section 1231 property, the loss is an ordinary loss, meaning that it reduces your ordinary income, not your capital gains income. Section 1231 gives you the best of both worlds, because gains are long-term capital gains (after depreciation recapture) and losses are non-capital, or ordinary, losses. How do I Report the Sale? You report the sale of a rental property on IRS form 4797: Sales of Business Property. The gross sales price, cost or other basis plus expenses of sale, depreciation allowed or allowable, adjusted basis, and total gain are all reported on Page 2, Part III, lines 20 through 24. If the property is Section 1250 property (which is just about any rental property), any ordinary income recapture is calculated on line 26. The capital gains portion of your gain is determined by subtracting the additional depreciation from the total gain. These amounts are carried to page 1 of Form 4797, where this capital portion is netted with other Section 1231 transactions. Transfer the net of Section 1231 transactions from page 1 of Form 4797 to Form 1040, Schedule D, Capital Gains and Losses. Put the ordinary income portion of your gain on line 14 of Form 1040, while your net capital gains from Schedule D are carried to line 13a of Form 1040. If your sale results in a loss, the entire loss is carried to line 14 on Form 1040 and is available to offset income from other sources. What is My After-Tax Cash Flow? Now that you have calculated your tax, you can calculate your net cash proceeds from the sale of the property. Enter your net sales price. Subtract any outstanding loan, to get a subtotal. Multiply the net gain (calculated in the previous example) by the capital gain rate of 25 percent on the part of the gain that represents depreciation and 15 percent on the rest of the gain. Subtract that figure from the subtotal, to see your net cash flow. Example: In our example, assume that Sally had decided she would not sell the rental property unless she could wind up with at least $200,000 cash after taxes and loan repayment. Assume she had an outstanding loan of $125,000 and other taxable income in her return. Her capital gains rates are affected by her other income. She calculates her after-tax cash flow as follows: Net sales price $418,500 Less repayment of the outstanding loan 125,000 Subtotal $293,500 Capital gains taxes at up to 25% & 15% $43,692 Net cash flow (before state taxes) $249,808 Based upon the above calculation, Sally would prefer to sell the rental property because her after-tax cash flow meets her requirements. Caution: Different states have different rules for taxing capital gains. Here, we have not considered the state tax impact. But, before making the sale, you should familiarize yourself with the state tax rules. If the property is located in a state other than your state of residence, it may be wise to study the rules of both the state in which the property is located and your state of residence, because both states may be very interested in your gain. For more on capital gains, see FAQ on Capital Gains . 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We have one of the largest listings of independentreal estate agents online. Our goal is to showcase the premier Florida real estate agent websites online. Be sure to feel out multiple real estate agents when searching so that you cansee first hand which are most responsive to your needs. We are confident all of the agents listed with us will exceed your expectations. When you contact an agent please let them know that you found them through REGuideUSA.com. FREE Property Listings - Agents add your property listings for free at eHousingMarket! Buyers browse detailed property listings with no registration! Find A Florida Real Estate Agent - Planning to Sell or Buy a Home? Compare REALTORS First. It's Fast, Free, and Anonymous! Houses in Weston, Florida - If you are thinking about buying real estate in South Florida then Weston is the place for you. 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California Department of Real Estate: Licensee Status Inquiries California Home DRE Home Contact Us What's new About DRE Careers at DRE DRE Records Consumers Escrow Violations eLicensing Examinees Licensees Subdivisions Real Estate Law Regulations Publications Forms FAQs Links Index Department of Real Estate My CA Licensee Status Inquiries indicates an item is in Portable Document Format (PDF). You will need Adobe Reader (or an Adobe Acrobat product) to view it. Click on the icon below to download a free copy of Adobe Reader. Click here for information about using Adobe Reader. You may check the status of real estate salesperson, broker, and corporate licensees online. However, before you do, please take a minute and review the information below on how to use the inquiry screen. Click here to check the status of a real estate salesperson, broker, or corporation. NOTE: The online status inquiry feature is a service for consumers. It is not intended for, nor capable of, automated database searches or sorts. If you desire such database files, please contact the Department for information on availability and costs. Using the Real Estate License Status Inquiry Screen If you enter a name (and, optionally, the city), click on the find button to advance to an index of licensees who satisfy your search criteria. The license identification number, name, license type and city as contained in the mailing address of record, are displayed in the index. This information is provided to help you select the license record you are seeking. If you click on the license I.D. number from the name index or if you use the license I.D. search from the first screen, you will migrate to the final screen that displays the public information available for that licensee such as the license expiration date, status, salesperson associates, office addresses and corporate affiliations. The information presented reflects the license records of the DRE at the time of your inquiry; however, it will not reflect pending updates which are being processed by the Department. Helpful Hints Mark the search page with a "bookmark" or "favorite" indicator so that you can initiate search requests from your own menu. Review the search tips above, especially when you receive a "no record" reply. Review the supplemental explanations of status and comment descriptions available on the public information page. Out-of-Date License Information If your license record reflects information which is no longer current (wrong address, employing broker, etc.), you can use the eLicensing online system to update your license record immediately. Or, you may notify the DRE using the appropriate change request form: Salesperson Change Application ( RE 214 ) Broker Change Application ( RE 204 ) Corporation Change Application ( RE 204A ) Prior to submitting your change application, please review Tips for a Smooth Licensing Transaction . Depending on the change being requested, the approximate processing time frame for paper applications is 4 to 6 weeks. Actions Against Unlicensed Persons The Department publishes monthly a list of names of persons and businesses which have been found to have been conducting real estate activities without a license. See Desist and Refrain Orders for Unlicensed Activities . Back to Top of Page Conditions of Use | Privacy Policy | Tech Problems 2003 State of California This page last modified on Friday, August 06, 2004

real estate broker license.

California Department of Real Estate: FAQs - Mortgage Loan Brokering in California California Home DRE Home Contact Us What's new About DRE Careers at DRE DRE Records Consumers Escrow Violations eLicensing Examinees Licensees Subdivisions Real Estate Law Regulations Publications Forms FAQs Links Index Department of Real Estate My CA FAQs: Mortgage Loan Brokering in California indicates an item is in Portable Document Format (PDF). You will need Adobe Reader (or an Adobe Acrobat product) to view it. Click on the icon below to download a free copy of Adobe Reader. Click here for information about using Adobe Reader. Provided below are answers to some of the most frequently asked questions regarding licensing and other related issues for those who are interested in some aspect of the mortgage business in California. Questions come from both licensees and non-licensees from other states and California expressing an interest in California licensing requirements to engage in mortgage activity. The following questions and answers are intended to answer many, but by no means all, of these inquiries from the standpoint of the Department of Real Estate requirements. Q . - As a mortgage broker in Kansas (or any other state), my plan is to move to California and pursue this same business. Does California issue mortgage broker licenses and is there any reciprocity in licensing with other states? A . - California does not issue a "mortgage broker" license. A majority of those engaged in mortgage loan brokering do so with a real estate broker license. To the surprise of some, the license that allows the listing and sale of real property (the traditional activities associated with a real estate broker license) is the same license that allows the solicitation of borrowers or lenders, the negotiation of loans secured by real property and the collection of payments on notes secured by real property. For further details concerning the definition of licensed activity, review Business and Professions Code Sections 10130 and 10131. It should be noted there are other licenses that allow mortgage loan brokering under a limited set of circumstances, such as the California finance license and the residential mortgage lending license. For information about these licenses contact the California Department of Corporations. (See addresses at end of pamphlet.) California does not have reciprocity with any other state as far as a real estate license is concerned. Information regarding obtaining either an individual or corporation real estate broker license is explained in Instructions to License Applicants . Q . - As a mortgage broker working outside of California, I occasionally have clients who are moving to California and have asked me to broker a loan for them to be secured by their new home. Although I am not licensed in California, can I broker a loan secured by California real estate? Does California have a rule that allows me to broker a small number of loans in California before I would have to be licensed? A . - No. To broker even one loan in California you need to be licensed here. However, California Real Estate Law does allow a California broker to share a commission with a broker from another state. Therefore, it may be possible to co-broker the loan with a licensed California broker. Q . - I am a licensed California real estate broker and I specialize in the sale of real property, primarily residential homes. I would like to branch out and engage in mortgage brokering. What additional licensing must be obtained? A . - As a licensed real estate broker, you may engage in mortgage brokering without any additional license. A real estate broker may engage in a variety of real estate related activities including residential home sales, mortgage brokerage, and property management, among others. You may, however, wish to consult with the Department of Housing and Urban Development to determine their rules regarding real estate sales and the arranging of FHA loans. Additionally, if you represent a buyer or seller in a real estate transaction, and will also be compensated for obtaining the loan for the buyer, Commissioners Regulation 2904 requires you to disclose, to all parties in the transaction, the form, amount, and source of the compensation received or expected for the loan. Go to Top of Page Q . - Another broker told me that the kind and volume of mortgage brokerage activity I engage in makes me a "threshold" broker. What does that mean? A . - Determining whether a broker meets the "threshold" criteria takes a careful reading of Section 10232 of the Business and Professions Code. Generally, the criteria is met by brokers who arrange, sell, or service "private investor" or "private lender" loans, sometimes referred to as "hard money" loans. The "threshold" criteria is satisfied by negotiating 10 or more loans or sales of notes or real property sales contracts in any 12-month period in an aggregate amount of more than $1,000,000 (all of which were funded or purchased by private investors or small pension trusts). A broker can also meet the "threshold" criteria by servicing loans on behalf of investors or on behalf of obligors. If the aggregate amount of payments collected is $250,000 in any 12-month period, the "threshold" criteria has been met. Included in the $250,000 aggregate is any amount the broker collects on loan payoffs. Brokers who collect payments on behalf of obligors are typically those who collect payments from homeowners on a bi-weekly mortgage payment plan. Within 30 days of meeting the "threshold" criteria, a broker is required to submit a Threshold Notification (RE 853)   to the Department. The notification form is available at any DRE office or may be downloaded from the DRE Web site at http://www.dre.ca.gov . Q . - Once Ive submitted a Threshold Notification (RE 853) to the Department advising of my "threshold status," what happens next? A . - After receipt of the "threshold" notification, the Department sends the broker information and necessary documents for required quarterly and annual reporting to the Department and adds the broker to the "threshold" list. The Department then tracks and records each required report from the broker. Q . - What kind of reporting requirements are necessary if I satisfy the "threshold" criteria? A . - "Threshold" brokers make quarterly and annual reports to the Department on their trust fund bank accounts and an annual report on their business activities. Except for the annual trust fund report (which is done by a public accountant per instructions from the Department), the Department provides the necessary forms for the quarterly trust account and annual business activity reports. These are provided to the broker upon receipt of the "threshold" notification form. Go to Top of Page Q . - I am a broker who arranges loans for, and sells notes to, private investors and small pension trusts. May I also borrow personally from any of these investors? A . - Yes. However, these "self-dealing" loans are highly scrutinized and require notice to DRE before the transaction is completed. Before a broker, or salesperson acting on behalf of a broker, solicits and accepts funds for the direct or indirect use or benefit of the broker, the broker must submit to DRE a true copy of the Lender/Purchaser Disclosure Statement prior to obtaining the signature of the investor/purchaser. The Lender/Purchaser Disclosure Statement must be accompanied by the brokers statement that the submittal is being made pursuant to Business and Professions Code Section 10231.2. While the broker need not wait for DREs approval of the transaction, the Lender/Purchaser Disclosure Statement must be presented to the investor/lender not less than 24 hours prior to that person becoming obligated to make the loan or purchase the note. The Lender/Purchaser Disclosure Statement must also give a detailed explanation of the intended use of the funds, including an explanation of the nature and extent of the benefits to be derived directly or indirectly by the broker. It is very important to understand that "self-dealing" is not permitted in multiple investor (fractionalized) transactions except under the limited circumstances set forth in Business and Professions Code Section 10229(d)(1). Q . - When engaged in mortgage loan brokering, are there any special trust fund record keeping requirements? A . - Yes. In addition to the trust fund record keeping requirements of the Business and Professions Code that apply to all real estate brokers, mortgage brokers must also maintain quarterly trust fund reconciliations of their trust account on special forms available from the Department. These forms are completed, maintained in the brokers office, and made available upon request to a Department representative for review. The quarterly reconciliation forms are, Trust Fund Status Report ( RE 855)   and Trust Fund Bank Account Reconciliation (RE 856)   . Q . - Are there specific disclosure statements that must be used by a real estate broker in the mortgage business? A . - Every real estate broker who negotiates a loan to be secured directly or collaterally by a lien on real property shall, within three business days after receipt of a completed written loan application or before the borrower becomes obligated on the note, whichever is earlier, cause to be delivered to the borrower a statement in writing (borrowers disclosure statement), containing all the salient features of the loan to be negotiated by the broker. The statement must be personally signed by the borrower and by the real estate broker negotiating the loan or by a real estate licensee acting for the broker in negotiating the loan. When so executed, an exact copy thereof shall be delivered to the borrower at the time of its execution. A federal Good Faith Estimate (GFE) may also be required in a loan transaction under the Real Estate Settlement Procedures Act (RESPA). The GFE may contain some similar disclosures but it cannot, without modification pursuant to Business and Professions Code Section 10240(c), be a substitute for the disclosure statement required by state law. The state disclosure statement is called the Mortgage Loan Disclosure Statement (MLDS). If a GFE is necessary in the loan transaction, the Department has available a Mortgage Loan Disclosure Statement/Good Faith Estimate (MLDS/GFE). The MLDS/GFE satisfies the state disclosure requirement and the federal GFE requirement. In addition to a disclosure statement for the borrower in a loan transaction, there are lender disclosure statements that a broker may be required to use. Unlike the MLDS or MLDS/GFE which must be provided to a borrower in virtually every loan transaction, the disclosure statement for a lender/investor is limited to private and small pension trust lenders/investors. Lenders/investors such as banks, savings and loan associations, credit unions, and a variety of others need not receive the lender/investor disclosure statement which is called the Lender/Purchaser Disclosure Statement (LPDS). Every real estate broker, in making a solicitation to a private investor and in negotiating with that investor to make a loan secured by real property or to purchase a real property sales contract or a note secured by a deed of trust, is required to deliver to the investor solicited the applicable completed statement as early as practicable before he or she becomes obligated to purchase or make the loan. The statement shall be signed by the prospective lender or purchaser and by the real estate broker, or by a real estate salesperson licensed to the broker, on the brokers behalf. When so executed, an exact copy shall be given to the prospective lender or purchaser. The Department has available three versions of the LPDS, depending on the type of transaction. There are statements for loan origination, sale of an existing note and one for a collateralized loan. Please note that collateralized loans are not permitted in multi-lender transactions. Go to Top of Page Q . - Are there specific rules or laws that pertain to advertising by real estate brokers engaging in mortgage activity? A . - Yes. The law states, in part, that: "No real estate licensee shall knowingly advertise, print, display, publish, distribute, telecast or broadcast, or cause or permit to be advertised, printed, displayed, published, distributed, televised or broadcast, in any manner any statement or representation with regard to the rates, terms, or conditions for making, purchasing or negotiating loans or real property sales contracts which is false, misleading or deceptive." To assist licensees in complying with the law, Commissioners Regulation 2848 sets forth sixteen (16) subsections of "donts" of mortgage loan advertising. Q . - What about those who advertise from outside of California via the Internet? A . - Advertising real estate services on the Internet, including mortgage loan services, is considered solicitation of a California resident when read by a resident of California. Either the out-of-state advertiser on the Internet must be properly licensed in California or the ad must contain a disclaimer to the effect that the ad is not valid in California. The Department has prepared information regarding Internet advertising which is available from any Department district office and is partially reproduced here: Internet Advertising These guidelines have been prepared by the California Department of Real Estate to assist real estate brokers and businesses that are not licensed in California who are considering advertising real estate services on the Internet. If you are not properly licensed in California, you may not solicit California residents. To do so would be considered conducting activity for which a real estate license is required. Because the Internet can be read by anyone in any location, advertising your services on the Internet would be considered soliciting a California resident when read by a resident of this state. If you conduct activity which requires a California real estate license, but you are not a California licensee, you could be subject to administrative sanction such as a Desist and Refrain Order. If you are now conducting, or plan to conduct, the above activity in California, you need to apply for a real estate broker license . If you dont plan to become licensed in California, you should make sure your Internet advertising contains a disclaimer such as the following: "Notice: This offer is valid only in State 1, State 2..." (states wherein you are licensed or authorized to do business). If you are licensed in numerous states, you may want the disclaimer to read: "Notice: This offer is not valid in State 1, State 2..." (states in which you are not licensed or authorized to do business). Q . - Are there some advertising violations that are more often encountered than others? Yes. Some of the more common advertising violations are: Using terms in a comparative or superlative degree to describe any aspect of the business or any terms applicable to loans negotiated by the broker, without setting forth in the ad additional information to render the superlative or comparative terms unambiguous in the context in which they are used. For example, a broker who advertises "FAST LOANS" must also set forth in the ad how "fast is fast" (e.g. "most loans closed in 90 days from application"). A broker who advertises "LOW RATES" should also set forth in the ad what rates are available so that the term "LOW" is actually defined. It should be noted that the Department may require the broker to substantiate any claims made in an ad or require additional qualifiers in the ad to ensure the ad is not misleading to the public. Advertising a specific payment for a loan without including in the ad an equally prominent disclosure of the loans interest rate, APR, principal amount, number, amount and period of payments scheduled to maturity and the balance due at maturity if not a fully amortized loan. Advertising an interest rate without disclosing whether the rate is for first mortgages, junior loans or both. Advertising a loan program with special qualifying restrictions or special requirements without setting forth those requirements or restrictions in the ad. Advertising an interest rate without an equally prominent disclosure of the APR. It should be noted that if a rate appears in an ad without an APR, a disclosure of "APR NOT CALCULATED" is not sufficient. An APR must be disclosed if a rate appears in the ad. In addition to the above examples, which are based on specific subsections of the regulation, phrases and words used in advertising can be misleading in themselves. "No Cost" loans and "No Fee" loans are such words. All real property secured loans have certain inherent costs, such as title insurance, escrow, appraisal, recording fees, etc. These services are bought and paid for by the borrower in all loan transactions. In the cases where a broker arranges a premium priced loan where a lender rebate is used to pay for these services, the services are still performed and the costs incurred. The borrower pays the costs of the services via a higher interest rate than would be available if the borrower paid for the services out-of-pocket. In effect, the borrower finances the closing costs over the entire life of the loan. Although there may be no out-of-pocket costs to the borrower, clearly there are fees and costs involved, contrary to the claims in these ads. Go to Top of Page Q . - I understand something called the "multi-lender rule" was transferred from the California Department of Corporations to the Department of Real Estate. What is this and how may I as a mortgage broker be affected? A . - The Department of Corporations enforces the state securities laws which require that any security in an issuer transaction be qualified prior to sale with certain exemptions. Such an exemption was the "multi-lender rule" (Section 260.105.30) which permitted the sale of interests in notes secured by real property to not more than 10 persons as defined. This "rule" was legislatively transferred by Assembly Bill 754 (Kuykendall) to the Department of Real Estate as Section 10229 of the Business and Professions Code. Any real estate broker (mortgage broker) involved in loan transactions secured by real property where the investors number 10 or less, but more than one, known as fractionalized notes, must notify the Department of Real Estate of the engagement in "multi-lender" activity. Any broker who arranges, sells or services such fractionalized notes must file a Multi-Lender Transaction Notice (RE 860)   with the Department within 30 days of the first such transaction. Quarterly, CPA-prepared reports must be filed by any broker who acts as the servicing agent for such notes where the payments due during any period of three consecutive months exceeds $125,000, or the number of persons entitled to payments exceeds 120. The quarterly reports are in addition to the "threshold reports" previously discussed. Section 10229 is very detailed and should be carefully reviewed before becoming involved in multi-lender transactions. Q . - As a mortgage broker, can I collect fees from a borrower to cover certain costs in a loan transaction when a loan application is taken, such as a fee to cover my expenses in processing the application or fees for credit report and appraisal? A . - Fees that are collected by the broker from a borrower prior to the services being rendered are defined as "advance fees." To preclude the inappropriate use of such fees, a broker can only collect "advance fees" if the contract or agreement to do so has been submitted to and approved by the Department in advance of use. This agreement specifically tells a borrower how the "advance fees" are to be used by the broker. The broker must also maintain all "advance fees" in a trust fund bank account and they must be expended only on behalf of the borrower. In addition, whatever other materials the broker might use in collecting "advance fees" must also be submitted to the Department, prior to use, for review and approval. Credit report and appraisal fees, although technically "advance fees" are not considered as such and may be collected without adhering to the prescribed advance fee procedures. These fees are invariably passed to third parties performing the services. They must, however, be maintained in a trust fund bank account and expended appropriately. A broker may not profit from the collection of credit report and appraisal fees. If actual costs are less than collected, the excess must be refunded to the borrower. Q . - I am not licensed as a real estate broker or real estate salesperson and I am only going to assist private parties who wish to sell their notes (secured by real property) for cash to another party (investor), perhaps in another state. Is a real estate license required if I conduct this activity in California? A . - The activity described, so-called note brokering , requires a real estate license if performed in California. This includes the solicitation of California note owners, whether in person, by mail, telephone, or other means of communication. One of the definitions of a real estate broker is: "...a person who, for a compensation or in expectation of a compensation, regardless of the form or time of payment, does or negotiates to do one or more of the following acts for another or others: (e) Sells or offers to sell, buys or offers to buy, or exchanges or offers to exchange a real property sales contract, or a promissory note secured directly or collaterally by a lien on real property or on a business opportunity, and performs services for the holders thereof." There are companies engaged in the discounted purchase of certain mortgages, primarily those carried back by residential sellers and secured by the transferred real property. The companies hold seminars to recruit people to solicit and negotiate the sale of these mortgages. Seminar attendees are informed that they do not need a real estate license to engage in this activity. In California, this is wrong because the activity fits the definition quoted above. Go to Top of Page Q . - Is a real estate licensee in the mortgage business required to show any specific disclosure of his or her license status in an ad? A . - All California real estate licensees, when acting as such, must disclose licensure in advertising. For a broker engaged in mortgage loan activity, the following also applies: "No real estate licensee shall place an advertisement disseminated primarily in this state for a loan unless there is disclosed within the printed text of that advertisement, or the oral text in the case of a radio or television advertisement, the license under which the loan would be made or arranged." A real estate broker must include one of the following disclosures in any mortgage loan advertising: "Real estate broker, California Department of Real Estate" or "California Department of Real Estate, real estate broker." The words "California" and "Department" may be abbreviated as "CA", "CAL" or "CALIF" and "DEPT." In addition to the license and licensing department identifiers, mortgage brokers must include their 8 digit broker license identification number in the ad. In the borrower and lender/purchaser disclosure statements (MLDS and LPDS), a broker must disclose the license identification number and the information telephone number established by the Department that a consumer can call to inquire about the license status of the broker. Q . - Has there been a change in the retention period that brokers are required to keep records? A . - The general rule is that brokers are required to keep records for a three-year period. However, pursuant to Business and Professions Code 10229(e)(1), the investor qualification statement required on a multi-lender loan has a four-year retention period requirement. Also, self-dealing statements, pursuant to Business and Professions Code 10231.2(b), must be retained for four years by the broker. Real estate brokers are not only affected by laws and regulations enforced by the Department of Real Estate, but also many others at both the state and federal level. The foregoing questions and answers are based on the California Business and Professions Code and the Regulations of the Real Estate Commissioner. Real estate brokers should be familiar with the other laws affecting their business. In this regard, they may receive assistance from other enforcement agencies, private legal advisors, and/or professional trade organizations. Office Locations Department of Real Estate Sacramento District Office 2201 Broadway P.O. Box 187000 (mailing address) Sacramento, CA 95818-7000 (916) 227-0770 (Mortgage Loan Section) Fresno District Office 2550 Mariposa Mall, Suite 3070 Fresno, CA 93721-2273 (559) 445-5009 Los Angeles District Office 320 W. 4th Street, Suite 350 Los Angeles, CA 90013-1105 (213) 620-2072 Oakland District Office 1515 Clay Street, Suite 702 Oakland, CA 94612-1462 (510) 622-2552 San Diego District Office 1350 Front Street, Suite 3064 San Diego, CA 92101-3687 (619) 525-4192 Department of Corporations: Sacramento 1515 K Street, Suite 200 Sacramento, CA 95817 (866) ASK-CORP - (866) 275-2677 US Department of Housing and Urban Development (HUD) Regional Office: San Francisco P.O. Box 36003 450 Golden Gate Avenue San Francisco, CA 94102-3448 (415) 436-6550 Federal Trade Commission (FTC) Regional Offices: San Francisco 901 Market Street, #570 San Francisco, CA 94103 (415) 356-5270 Los Angeles 10877 Wilshire Blvd., #700 Los Angeles, CA 90024 (310) 824-4343 Back to Top of Page Conditions of Use | Privacy Policy | Tech Problems 2003 State of California This page last modified on Tuesday, August 31, 2004