Robinson v. Murphy

In Robinson v. Murphy (1979) 96 Cal.App.3d 763, a licensed broker, Murphy, paid a 6 percent broker's commission to his own business, Tim Murphy Realty, upon the sale of his own property. The court reasoned that a licensee who acts as a principal in buying or selling property is not acting as a broker within the definition of section 10131 since he is not acting "for another or others." Further, section 10133 expressly excludes from the definition of "broker" one who "performs any of the acts within the scope of this chapter with reference to his own property . . . . " Thus, the court concluded Murphy was not precluded by his status as a licensed broker from acting as a principal in the sale of his own property. ( Id. , at p. 768.) Section 10133 provides in pertinent part: "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." The court specifically observed that the transaction was not performed "'for a compensation or in expectation of a compensation'" (p. 769) and explained: "Although Murphy, as vendor, agreed in the purchase agreement to pay a commission to the realty company of which he was the sole owner, Murphy's testimony at the present trial established that he included this provision in the agreement only because he felt that the income tax laws required him to do so because he was a licensed real estate broker. It is undisputed that Murphy's only gain from the sale was that which is realized by any property owner who sells at a profit. The trial court so viewed the situation and stated, during its questioning of Murphy, that it could not see 'what difference it made whether you called part of your gain commission or called it profit from sale.' Murphy replied that he thought that because he was in fact a broker, the income tax laws required that he treat 6 percent of the sales price as a commission payable to the realty company of which he was the sole owner. It is evident that Murphy's interpretation of the income tax laws has no bearing upon the economic realities of Murphy's transaction with plaintiff. Murphy paid himself no 'compensation,' nor were his acts performed prior to the signing of the agreement done 'in expectation' of any compensation other than the realization of a profit on the sale of his property." (Pp. 769-770.)