Brokers do not have to retain texts and tweets

The Silicon Valley Association of REALTORS® has learned that Assembly Bill 2136, signed into law by California Governor Jerry Brown in July and effective January 1, 2015, helps clarify a REALTOR®’s record retention obligations when it comes to electronic communications.

The California Association of REALTORS® (C.A.R.) sponsored legislation to provide guidance in this new and rapidly changing area of interpersonal communications. AB 2136 amends both Business and Professions Code Section 10148 (broker record retention requirements) and Civil Code Section 1624 (the Statute of Frauds – controlling which contracts must be in writing to be enforceable). Added to Section 1624 is a provision that “an electronic message of an ephemeral nature that is not designed to be retained or create a permanent record, including, but not limited to a text or instant message . . . is insufficient to constitute a contract to convey real property. . .” If the principals do send texts or tweets that they intend to be part of a real estate contract, there are additional steps that need to be taken under Section 1624. See C.A.R. Q&A at http://www.car.org/legal/broker-practice-folder/calbRRRR/

Added to Section 10148 is a provision that “[t]his 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.”

AB 2136 will give some welcome relief from the possibility of having to save all “ephemeral” electronic communications, such as tweets and texts. Emails, however, are not mentioned in Section 1624. C.A.R. advises REALTORS® who are not already saving emails with clients that are material to a transaction and relate to licensed activity to create a system to store them.

CalBRE Commissioner Wayne Bell has informed C.A.R. that in light of the new law, CalBRE will not be requiring retention of “ephemeral” records referred to in the bill, effective now, even though the law does not technically come into effect until January 1, 2015.