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Just Who Are A Corporation's "Regular Officers"?

California declares it unlawful for any person to engage in the business of, act in the capacity of, advertise as, or assume to act as a real estate broker or a real estate salesperson within California without first obtaining a real estate license.  Cal. Bus. & Prof. Code § 10130.  The definition of "real estate broker" is extremely broad.  Thus, a "real estate broker" is any person who for compensation or in expectation of a compensation, regardless of the form or time of payment, does or negotiates to do one or more of a number of enumerated acts "for another or others".  Cal. Bus. & Prof. Code § 10131.  Today's post focuses on corporations and when an act is done "for another or others".

It should be apparent that someone selling his or her own house is not acting "for another or others".  The Real Estate Law formerly codified this concept: "The definitions of a real estate broker and a real estate salesman as set forth in sections 10131 and 10132, do not include the following: (a) Anyone who directly performs any of the acts within the scope of this chapter with reference to his own property or, in the case of a corporation which through its regular officers receiving no special compensation therefor, performs any of the acts with reference to the corporation's own property."    In 1985, however, the statute was rewritten and now reads as follows:

"(a) The acts described in Section 10131 are not acts for which a real estate license is required if performed by:

(1) A regular officer of a corporation or a general partner of a partnership with respect to real property owned or leased by the corporation or partnership, respectively, or in connection with the proposed purchase or leasing of real property by the corporation or partnership, respectively, if the acts are not performed by the officer or partner in expectation of special compensation. . . ."

Cal. Stats. 1985, Ch. 476, Sec. 1 (emphasis added).

Annoyingly, both the former and the current statute refer to a corporation's "regular officers" but do not define term.  The term "regular officer" does not appear in the California Corporations Code.  Corporations Code Section 312 does mandate that a California corporation have certain specified officers, but includes the catch-all "such other officers with such titles and duties as shall be stated in the bylaws, or determined by the board and as may be necessary to enable it to sign instruments and share certificates".  Section 312, moreover, tells us nothing about the officers of foreign corporations.  The legislature similarly left "regular officer" undefined in the only other time that it appears in the Business & Professions Code.  Cal. Bus. & Prof. Code § 7637 (Cemetery & Funeral Act). 

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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
Partner

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...

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