provide that the listing broker shall be "charged with the full amount of the fee regularly due upon the sale, payable upon collection of the commission due." If this provision governed the rights of the local Realtors, Broker B in question would not be entitled to his share of the commission until and unless Broker A collected his entire commission from the seller. Obviously this problem can best be avoided if Broker A requires the seller to specify at the outset all restrictions, in which event the seller could not properly thereafter impose further restrictions. 17. Some Realtors feel we should advise property owners about our Code of Practices when listing property. Would the following be consistent with the wording now in our Code of Practices? "A Realtor may, when obtaining a listing, present a copy of the Code of Practices to the prospective seller so that he may be advised of that Realtor's position and his board's support of the Code." Answer. As we pointed out in our answer to question No. 7, it would be inadvisable for a broker to suggest a restrictive listing even to an owner of residential property who is lawfully entitled himself to insist upon such a listing. The reason for this is that such action might be construed as carrying on the business of acting as a real estate broker in a discriminatory manner in violation of the Unruh Act. The recommended Code of Practices of the California Real Estate Association does not advise or suggest a restrictive listing, and therefore could be given to a client. No special or set statement such as that above is necessary, other than to say very generally that we want our clients to be advised of our position with regard to these matters. APPENDIX I Opinion of Gibson, Dunn & Crutcher dated December 1, 1964 with respect to the effect of new Section 26, Article I of the California Constitution on the Unruh Civil Rights and Rumford Acts: The new Section 26 of Article I will prohibit the State and its agencies from denying, limiting, or abridging the right of the owner of any interest in residential real property to decline to sell or rent such property interest to such person as he may choose in his absolute discretion. The provision does not apply to the State or its agencies with respect to the sale or rental of property owned by it, to the acquisition of property by eminent domain, or to public lodging accommodations. Inasmuch as this provision is a part of the California Constitution, it will supersede and invalidate any provisions of California statutes in conflict with its provisions. Certain provisions of the Unruh and Rumford Acts are in conflict with the new constitutional provision, and certain other provisions of those acts will not be affected. We turn now to an examination of the effects of Proposition 14 on these two Acts. THE UNRUH CIVIL RIGHTS ACT This Act (Cal. Civ. Code § 51) provides that all person are free and equal and no matter what their race, color, religion, ancestry, or national origin "are entitled to the full and equal accommodations, advantages, facilities, privileges. or services in all business establishments of every kind whatsoever." Section 52 of the California Civil Code imposes liability, enforced through court proceedings, for actual damages plus $250 upon any person who discriminates in violation of Section 51. Prior to the adoption of Proposition 14, the courts have held that the Unruh Act applies both to the sale and to the rental of real property and to real estate brokers. The new constitutional provisions will make the Unruh Act and court decisions construing it inapplicable to two situations only: (a) Where the refusal to sell or rent an interest in real property is the act of the owner with respect to his interest in the real property, or (b) Where the refusal to sell or rent an interest in real property is the act of a real estate broker or other agent of the owner with respect to the owner's interest in the real property and the conduct of the broker or other agent is pursuant to the instructions of the owner. Or to put it conversely, the Unruh Act and the decisions construing it will still be applicable to the conduct of all persons engaged in the business of selling, renting or financing real property or providing services in connection with the sale or rental of real property unless it can be shown that the conduct involved was that of an owner of an interest in real property, or his duly authorized agent, exercising an independent decision of the owner with respect to the sale or rental of his interest in the real property. THE RUMFORD ACT This Act (Cal. Health & Safety Code, § 35720, et seq.) generally speaking, prohibits discrimination with respect to the sale or rental of publicly assisted and certain other housing accommodations on the basis of race, color, religion, national origin or ancestry. The prohibitions of this Act extend not only to the owners of the housing accommodations covered but also to all persons subject to the provisions of the Unruh Civil Rights Act (Cal. Civ. Code § 51), to persons or firms to whom application is made for financial assistance for the purchase or construction of any housing accommodation who discriminate on the grounds of race, color, religion, national origin, or ancestry of such applicants or of prospective occupants or tenants in the terms, conditions or privileges relating to the obtaining or use of any such financial assistance and to any person who aids, abets, or incites the doing of any of the prohibited practices. The State Fair Employment Practices Commission is empowered to enforce the Act though injunctions and actions for damages in behalf of the aggrieved person. The Commission is also empowered to attempt to eliminate alleged discrimination in violation of the Act through conference, conciliation, and persuasion and to create advisory agencies and conciliation councils to study problems of discrimination in all or specific fields of human relationships and to foster through community effort or otherwise goodwill, cooperation, and conciliation among all elements or groups of the population. The new constitutional provision will, in our opinion, nullify those provisions of the Rumford Act empowering the FPEC to seek, and the courts to grant, either injunctive relief or damages against the owner of an interest in residential real property who has allegedly discriminated against a person because of his race, color, religion, national origin or ancestry in refusing to sell or rent such property interest. Likewise invalid will be those same enforcement provisions of the Rumford Act as against (i) persons covered by the Unruh Act, including real estate brokers (ii) persons or firms providing financial assistance and (iii) other persons aiding or abetting the violation of the other provisions of the Rumford Act if and to the extent that such other persons or firms are acting pursuant to the instructions of an owner of an interest in residential real property in declining to sell or rent such property interest. As is the case under the Unruh Act, all the provisions of the Rumford Act will still be in full force and effect as to all persons engaged in the business of selling, renting or financing residential real property or providing services in connection with such sales or rentals unless it can be shown that the conduct involved was that of an owner of an interest in such property, or his duly authorized agent, exercising an independent decision of such property owner with respect to the sale or rental of his property interest. We are also of the opinion that the conciliation powers of the FEPC may no longer be valid insofar as they are directed at those property owners or their duly authorized agents no longer subject to the enforcement powers of the FEPC. This is because the use of such conciliation powers ordinarily would involve either a direct or indirect effort to eliminate or abridge the right of such property owner to choose his prospective buyer or tenant without governmental interference, and the new Section 26 of Article I will prohibit indirect as well as direct abridgement of that right by the State or its agencies. Broker, I hereby employ Broker as my sole and exclusive agent to sell for me that certain real property situated in the City of said Broker the exclusive and irrevocable right to sell the same, and to accept a deposit thereon, for the price of $...... cash; balance payable $ This authority shall continue irrevocably from date until I agree to pay Broker 196. per cent of the selling price in the event that during the period of this contract: Broker secures a purchaser ready, able and willing to purchase said property on the above terms, or at any other price or terms acceptable to me, or said property is sold or exchanged or leased by said Broker or any other person, including myself. I agree to pay Broker said per cent of the listing price if I withdraw said property from sale or exchange or otherwise prevent performance hereunder by Broker. I agree to pay Broker per cent of the selling price if said property be sold or exchanged within three months after the termination of this contract to any person with whom Broker has negotiated or to whose attention he has called said property and whose name and address has, during the life hereof, been submitted to me in writing personally or by mail to me at my address given below in which cases Broker shall be conclusively deemed the procuring cause of such sale or lease or exchange to such person. It is understood Broker is a broker member of Berkeley Realty Board Mart. Members of said Mart may act in association with Broker in procuring or attempting to procure a purchaser. This shall not be construed as making the Mart my agent for any purpose, or as making any members sub-agents of the Mart or of Broker. In the event a sale or exchange shall be made or a purchaser procured by a member of the Mart other than Broker, all of the terms of this agreement shall apply to the transaction, subject to the rights of Broker. Payment for commission or compensation hereunder shall be made by me only to Broker. Evidence of merchantable title shall be in form of policy of title insurance by a responsible title company, same to be paid for by purchaser. Interest, insurance, taxes, expenses and rent shall be pro-rated through escrow as of date of recording of deed, unless otherwise herein designated. In case deposit is forfeited, one-half of same shall be retained by or paid to Broker as his compensation, and one-half to me, provided Broker's portion of any forfeiture shall not exceed the amount of the above named commission. It is hereby understood by all parties to this agreement that the Berkeley Board of Realtors does not accept Exclusive Right Listings to be sem viced by the Multiple Listing Service that would discriminate against a buyer because of race, color, creed, or national origin. Dated). RECEIPT OF A COPY OF THIS LISTING IS HEREBY ACKNOWLEDGED Address Owner IN CONSIDERATION OF THE ABOVE EMPLOYMENT, BROKER AGREES TO USE DILIGENCE IN PROCURING |