California Assembly Bill AB2273 Amended / Bill

 BILL NUMBER: AB 2273AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 16, 2012 INTRODUCED BY Assembly Member Wieckowski FEBRUARY 24, 2012 An act to amend Section 1368 of  , and to add Section 2924.1 to,  the Civil Code, relating to common interest developments. LEGISLATIVE COUNSEL'S DIGEST AB 2273, as amended, Wieckowski. Common interest developments: required documents.  The   (1)     The    Davis-Stirling Common Interest Development Act requires an owner of a separate interest in a common interest development to provide specified documents to a prospective purchaser of that interest. Existing law requires a homeowners' association to provide these documents to the owner of the separate interest within 10 days of the mailing or delivery of the request, and limits the amount of fees charged for the provision of the documents to the association's actual costs to procure, prepare, and reproduce the requested documents. This bill would additionally provide that an  acquiring  owner of a separate interest shall, within 30 days of  transferring   receiving  title, provide to the association's board secretary, agent, manager, or designated representative, a copy of the owner's deed or other document transferring title to the  purchaser   acquiring owner  of the separate interest and a written notice of the  purchaser's   acquiring owner's  mailing address, except as specified.  (2) Existing law imposes various requirements that must be satisfied prior to exercising a power of sale under a mortgage or deed of trust.   This bill would, notwithstanding any other law, impose certain requirements on the sale of a property in a common interest development, as defined, executed under a power of sale contained in any deed of trust or mortgage. Among other things, the bill would require the sale to take place in the county where the property or a portion of the property is located, and would also require the sale to be recorded within 30 days, as specified. The bill would also make the acquiring owner liable for certain unpaid liens recorded on the property if the sale is not recorded according to the provisions above.  Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1368 of the Civil Code is amended to read: 1368. (a) The owner of a separate interest, other than an owner subject to the requirements of Section 11018.6 of the Business and Professions Code, shall, as soon as practicable before transfer of title to the separate interest or execution of a real property sales contract therefor, as defined in Section 2985, provide the following to the prospective purchaser: (1) A copy of the governing documents of the common interest development, including any operating rules, and including a copy of the association's articles of incorporation, or, if not incorporated, a statement in writing from an authorized representative of the association that the association is not incorporated. (2) If there is a restriction in the governing documents limiting the occupancy, residency, or use of a separate interest on the basis of age in a manner different from that provided in Section 51.3, a statement that the restriction is only enforceable to the extent permitted by Section 51.3 and a statement specifying the applicable provisions of Section 51.3. (3) A copy of the most recent documents distributed pursuant to Section 1365. (4) A true statement in writing obtained from an authorized representative of the association as to the amount of the association' s current regular and special assessments and fees, any assessments levied upon the owner's interest in the common interest development that are unpaid on the date of the statement, and any monetary fines or penalties levied upon the owner's interest and unpaid on the date of the statement. The statement obtained from an authorized representative shall also include true information on late charges, interest, and costs of collection which, as of the date of the statement, are or may be made a lien upon the owner's interest in a common interest development pursuant to Section 1367 or 1367.1. (5) A copy or a summary of any notice previously sent to the owner pursuant to subdivision (h) of Section 1363 that sets forth any alleged violation of the governing documents that remains unresolved at the time of the request. The notice shall not be deemed a waiver of the association's right to enforce the governing documents against the owner or the prospective purchaser of the separate interest with respect to any violation. This paragraph shall not be construed to require an association to inspect an owner's separate interest. (6) A copy of the initial list of defects provided to each member of the association pursuant to Section 1375, unless the association and the builder subsequently enter into a settlement agreement or otherwise resolve the matter and the association complies with Section 1375.1. Disclosure of the initial list of defects pursuant to this paragraph does not waive any privilege attached to the document. The initial list of defects shall also include a statement that a final determination as to whether the list of defects is accurate and complete has not been made. (7) A copy of the latest information provided for in Section 1375.1. (8) Any change in the association's current regular and special assessments and fees which have been approved by the association's board of directors, but have not become due and payable as of the date disclosure is provided pursuant to this subdivision. (9) If there is a provision in the governing documents that prohibits the rental or leasing of any of the separate interests in the common interest development to a renter, lessee, or tenant, a statement describing the prohibition and its applicability. (10) If requested by the prospective purchaser, a copy of the minutes of the meetings, excluding meetings held in executive session, of the association's board of directors, conducted over the previous 12 months, that were approved by the association's board of directors. (b) (1) Upon written request, the association shall, within 10 days of the mailing or delivery of the request, provide the owner of a separate interest, or any other recipient authorized by the owner, with a copy of the requested documents specified in paragraphs (1) to (10), inclusive, of subdivision (a). Upon receipt of a written request, the association shall provide, on the form described in Section 1368.2, a written or electronic estimate of the fees that will be assessed for providing the requested documents. The documents required to be made available pursuant to this section may be maintained in electronic form, and may be posted on the association's Internet Web site. Requesting parties shall have the option of receiving the documents by electronic transmission if the association maintains the documents in electronic form. The association may collect a reasonable fee based upon the association's actual cost for the procurement, preparation, reproduction, and delivery of the documents requested pursuant to the provisions of this section. (2) No additional fees may be charged by the association for the electronic delivery of the documents requested. (3) Fees for any documents required by this section shall be distinguished from other fees, fines, or assessments billed as part of the transfer or sales transaction. Delivery of the documents required by this section shall not be withheld for any reason nor subject to any condition except the payment of the fee allowed pursuant to paragraph (1). (4) An association may contract with any person or entity to facilitate compliance with the requirements of this subdivision on behalf of the association. (5) The association shall also provide a recipient authorized by the owner of a separate interest with a copy of the completed form specified in Section 1368.2 at the time the required documents are delivered. (c) (1) Unless the association notifies the  acquiring  owner of a separate interest that the association acknowledges a transfer of title, the  acquiring  owner shall, within 30 days of  transferring   receiving  title, provide both of the following to the association's board secretary, agent, manager, or designated representative: (A) A copy of the owner's deed or other document transferring title to the  purchaser   acquiring owner  of the separate interest. (B) Written notice of the  purchaser's   acquiring owner's  mailing address. (2) This subdivision shall not apply to an owner, subdivider, or agent subject to the requirements of Section 11018.6 of the Business and Professions Code. (d) (1) Except as provided in paragraph (2), neither an association nor a community service organization or similar entity may impose or collect any assessment, penalty, or fee in connection with a transfer of title or any other interest except for the following: (A) An amount not to exceed the association's actual costs to change its records. (B) An amount authorized by subdivision (b). (2) The prohibition in paragraph (1) does not apply to a community service organization or similar entity, or to a nonprofit entity that provides services to a common interest development under a declaration of trust, that is described in subparagraph (A) or (B): (A) The community service organization or similar entity satisfies both of the following requirements: (i) The community service organization or similar entity was established prior to February 20, 2003. (ii) The community service organization or similar entity exists and operates, in whole or in part, to fund or perform environmental mitigation or to restore or maintain wetlands or native habitat, as required by the state or local government as an express written condition of development. (B) The community service organization or similar entity, or a nonprofit entity that provides services to a common interest development under a declaration of trust, satisfies all of the following requirements: (i) The organization or entity is not an organization or entity described in subparagraph (A). (ii) The organization or entity was established and received a transfer fee prior to January 1, 2004. (iii) On and after January 1, 2006, the organization or entity offers a purchaser the following payment options for the fee or charge it collects at time of transfer: (I) Paying the fee or charge at the time of transfer. (II) Paying the fee or charge pursuant to an installment payment plan for a period of not less than seven years. If the purchaser elects to pay the fee or charge in installment payments, the organization or entity may also collect additional amounts that do not exceed the actual costs for billing and financing on the amount owed. If the purchaser sells the separate interest before the end of the installment payment plan period, he or she shall pay the remaining balance prior to transfer. (3) For the purposes of this subdivision, a "community service organization or similar entity" means a nonprofit entity, other than an association, that is organized to provide services to residents of the common interest development or to the public in addition to the residents, to the extent community common areas or facilities are available to the public. A "community service organization or similar entity" does not include an entity that has been organized solely to raise moneys and contribute to other nonprofit organizations that are qualified as tax exempt under Section 501(c)(3) of the Internal Revenue Code and that provide housing or housing assistance. (e) Any person or entity who willfully violates this section is liable to the purchaser of a separate interest that is subject to this section for actual damages occasioned thereby and, in addition, shall pay a civil penalty in an amount not to exceed five hundred dollars ($500). In an action to enforce this liability, the prevailing party shall be awarded reasonable attorneys' fees. (f) Nothing in this section affects the validity of title to real property transferred in violation of this section. (g) In addition to the requirements of this section, an owner transferring title to a separate interest shall comply with applicable requirements of Sections 1133 and 1134. (h) For the purposes of this section, a person who acts as a community association manager is an agent, as defined in Section 2297, of the association.  SEC. 2.   Section 2924.1 is added to the   Civil Code   , to read:   2924.1. (a) Notwithstanding any other law, a sale of property in a common interest development, as defined by Section 1351, executed under the power of sale contained in any deed of trust or mortgage shall meet all of the following requirements: (1) Take place in the county where the property or a portion of the property is located. (2) The sale shall be made to the highest bidder at an auction to be held Monday through Friday, between the hours of 9 a.m. and 5 p.m. (3) The sale shall be recorded within 30 days after the date of sale in the office of the county recorder where the property or a portion of the property is located. (b) In the event that the trustee of a deed of trust or mortgage fails to record a trustee's deed pursuant to paragraph (3) of subdivision (a), the acquiring owner shall be liable for all liens recorded pursuant to Section 1367 or 1367.1 that remain unpaid on the foreclosed property. (c) Any failure to comply with the provisions of this section shall not affect the validity of a sale in favor of a bona fide purchaser.