Governor Signs Buyer’s Choice Act into Law
Measure to take Effect Immediately as Urgency Statute

The Governor signed AB 957 (Galgiani), also known as the Buyer’s Choice Act, over the weekend amidst a spate of political gamesmanship that put its passage into question. While the bill had almost no opposition in the Legislature before its signing, it nevertheless faced an uncertain future as one of hundreds of bills that could have been vetoed by a Governor unhappy with the progress of talks over water legislation.

The bill, which takes effect immediately as an urgency statute, prohibits a seller who acquired title to residential real property at a foreclosure sale from requiring a buyer to purchase title insurance, or escrow services from a company chosen by the seller as a condition of receiving offers or selling the residential real property. A transaction subject to the act would not be invalidated solely because of the failure of any person to comply with any provision of the Act. The measure is effective only until January 1, 2015, unless extended by the Legislature.

For commonly asked questions surrounding AB 957, please see the CLTA’s Buyer’s Choice Act FAQ.

Buyer’s Choice Act

Frequently Asked Questions

Q. What is the Buyer’s Choice Act?

A. The Buyers’ Choice Act is a new law that prohibits a seller who acquired property as a foreclosure sale from requiring a buyer to purchase title and escrow services from a company chosen by the seller as a condition to receiving offers or selling the property. It was enacted by Assembly Bill 957 (Galgiani).

Q. Who is a seller under the Buyer’s Choice Act?

A. A seller is defined as a mortgagee or beneficiary under a deed of trust who acquired title to the property at a foreclosure sale, including a trustee, agent, officer or other employee of any mortgagee or beneficiary.

Q. When does the Buyer’s Choice Act become law?

A. On October 12, 2009. The law is an urgency measure and became effective when it was signed by the Governor on October 12, 2009.

Q. Can a buyer agree to accept the recommendations of the seller as to which title or escrow provider to use?

A. Yes, provided that a written notice of the right to make an independent selection of those services is first given by the seller to the buyer.

Q. Does the new law apply to all real estate transactions?

A. No. The law only applies to residential property improved by four or fewer dwelling units.

Q. What settlement services are covered by the law?

A. The law covers title insurance and escrow services.

Q. Are there penalties for violating the Act?

A. Yes. A seller who violates the new law is liable to the buyer for three times all charges made for the title insurance or escrow service. In addition, a seller who violates the law is also considered to have violated their licensing law.

Q. If a person violates the law can the sale be set aside?

A. No. A transaction cannot be invalidated solely because of the failure to comply with the law.

Q. What is the reason the Legislature passed the Buyer’s Choice Act?

A. The Legislative findings and declarations state that the recent troubled real estate market has resulted in a concentration of the majority of homes available for resale within the hand of foreclosing lenders and has dramatically changed the market dynamics affecting ordinary home buyers. The act declares that the potential for unfairness occasioned by the resale of large numbers of foreclosed home requires that protections against abused be made effective immediately.

Q. Does the Act continue indefinitely?

A. The Act is only effective until January 1, 2015 unless it is extended by the Legislature.

Homebuilders and Realtors are lobbying Congress to keep alive the tax credit for home purchases and to make it available to more buyers. They say the $8,000 credit—which is for people who have not owned a home for three years or more and expires after Nov. 30—has boosted demand for low-priced homes, many of them foreclosed and in need of repair. But, they maintain, it has done nothing for the “move-up” market, let alone the luxury segment. Many say the housing market will falter unless the credit is extended, doubled in value, and given to any buyer. “The giddiness we see out there [about a recovery] is without merit,” says Richard A. Smith, chief executive officer of Parsipanny (N.J.)-based Realogy, the parent of Century 21, ERA, Coldwell Banker, and Sotheby’s International Realty.
But some little-noticed data indicate there’s more strength in housing than the industry recognizes. Prices have stabilized, and even appreciated, in the middle- and high-priced segments of the market in many cities, not just in the low-priced segment that is most directly helped by the home-buyer tax credit. That’s according to the Standard & Poor’s/Case-Shiller tiered price indexes for 17 metro areas, which were released on Aug. 25 but received relatively little publicity.
Seasonally adjusted prices rose in each segment of the market (low-, medium-, and high-priced) from May to June in cities including Boston, Washington, and Chicago. High-end prices went up even in hard-hit Phoenix. Las Vegas, where foreclosures are running extremely high, is the only one of the 17 metro areas that saw a price drop in all three price categories in June.
“The tiers are really revealing,” says economist Karl E. Case of Wellesley College, who developed the index with Yale University economist Robert J. Shiller. “[The rising prices] can’t be just first-time buyers.” While prices could fall after the expiration of the tax credit, says Case, “It’s not a knockout blow if the expansion is broad-based.”
Those arguing that housing needs government life support say most of the sales action is in foreclosed homes, which tend to be super-cheap and are being bought as starter homes or investment properties. But a National Association of Realtors member survey seems to contradict that theory. Even as home sales rose, the share of first-time buyers dropped from 53% in March to 30% in July.
As for the argument that luxury is dead, Toll Brothers (TOL), the nation’s largest luxury homebuilder, announced last month that in its May-July quarter it posted its first year-over-year increase in signed home contracts since 2005. Toll Brothers even started cutting incentives in some markets, mostly in the Northeast and mid-Atlantic states.
True enough, the housing market remains weak. Increasing the tax credit to $15,000 for all homeowners through the end of next year would result in 675,000 additional home sales, according to an analysis by Mark M. Zandi, chief economist at Moody’s Economy.com (MCO).
There is evidence that sales fall when credits expire: In California, homebuilding slowed in July after a $10,000 credit for newly built homes expired. And with the rush of summer buying over, the market remains vulnerable to rising unemployment as well as a new wave of foreclosures, which could flood the market and drive down home prices. The Mortgage Bankers Assn. said last month that 9.24% of residential mortgage loans were delinquent as of the end of June, the most since recordkeeping began in 1972.
On the other hand, the housing market might be able to absorb more foreclosed properties as long as banks dribble them out slowly, says Rick Sharga, vice-president of Irvine (Calif.)-based RealtyTrac. “We may be in an unusual period of time where the market is recovering in spite of the record number of foreclosures,” he says. “It’s hard to explain, but that’s what the numbers suggest at the moment.”
With prices down and mortgage rates low, housing affordability is the best in years for those who can qualify for a mortgage (admittedly no easy feat). Michelle Meyer, an economist with Barclays Capital (BCS) in New York, says that while the tax credit did contribute to the lift in sales and prices, “A lot of it has to do with greater affordability and a brighter economic outlook. Even if you say some of the gain is artificial, it’s still true that we’re seeing an increase in housing demand, and that shows fundamental strength.”