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What Are Sellers California HOA Disclosure Obligations?

By
Real Estate Broker/Owner with KD Realty - 408.972.1822 CA DRE#01366594

What Are Sellers California HOA Disclosure Obligations?

The best way to keep a real estate business flowing, even in what some may say is traditionally a slow time of year, the fourth quarter, also known a the holiday season, is to use that time to connect with business partners.

I recently took Jacquie Berry, owner of CA HOA Document Review to lunch.  Earlier this year Jacquie, pictured below, was a guest speaker at an ActiveRain Lunch & Learn Meet-up.

Jacquie Berry Owner of CA HOA Document Review

 

In California, when a seller sells a property that has a homeowner's association ("HOA"), the seller has a legal obligation to disclosure to prospective purchasers. This duty is memorialized in Civil Code §4525 - Disclosure to Prospective Purchaser.

This typically happens when the listing agent lists a home for sale that has a homeowner's association.  For the most part, this involves a condominium community, however, there are many non-condominium communities that have an HOA and the seller has a legal obligation to disclosure when selling the property. 

Many management companies refer to the Request for HOA Documents as a "sales package."  Most management companies do not fully comply with the legal requirements pertaining to the sellers legal disclosure duties. I base that statement on my 13 years experience in real estate. I have yet to see a fully compliant disclosure package.

Most people (buyers, sellers and agents), don't know what the legal HOA disclosure requirements are. That is why it is so important to have an HOA document review. Believe me when I say Jacquie Berry knows the laws.  She can cite them backwards, forwards, inside out, upside down, and sideways.

Jacquie and her team review the HOA documents provided by an association's management company to ensure compliance with the laws.

 

magnifying glass surrounded by question marks

 

In all of my experience in selling condominiums, I've never represented a buyer who would not agree to pay for an HOA document review.  That is how important these reviews are. Buyers need to make their purchase with eyes wide open.  The only way to know if HOA documents are in compliance is to have an expert review them. The review is way above my pay grade notwithstanding the fact that it is not among my duties as a listing or selling agent. My duty is to advise and recommend!

Many listing agents, and sellers, feel that by merely making the request to the management company, and paying the fee, that meets the sellers legal obligation to disclosure. That belief is simply is untrue.

Most associations and management companies submit the documents directly to the title/escrow company. The documents are then made available to the selling agents.  Keep in mind it is the sellers duty to disclose. The association is not a party to the transaction. The parties to the transaction are the buyer and seller. The association does not have a duty to make disclosures to a buyer.

If Boards were smart, and I have yet to meet one that is, they would require the management company to include a disclaimer with the documents, disclaiming that the documents, provided at the request of the seller, may not be complete.

There is a presumption that Boards know the laws; management companies know the laws; and both the Board and the management company are in compliance.  Buying a property with an HOA based upon this hugely false presumption may well get a buyer far more than what they bargained for.

Many buyers have sued sellers after the closing for failing to disclose certain things regarding the association.  A good example is when a buyer gets a special assessment shortly after moving in.  Jacquie Berry has seen court ordered special assessments as high as $42,000.00 per door!

Imagine being a buyer who gets a $42,000.00 special assessment just weeks or months after closing.

No one can truly prevent someone from suing them. But, if a buyer sues a seller after the close because the property was special assessed, as in the example above, the best defense a seller has is if the seller also provides an HOA Document Review to the prospective purchaser prior to the close of escrow.

 Civil Code §4525 - Disclosure to Prospective Purchaser

By providing prospective purchasers with an HOA Document Review sellers meet the legal obligation to disclosure because any and all deficiencies are outlined in the CA HOA Document Review. By disclosing the deficiencies in compliance and outlining any and all financial deficits to the prospective purchaser, sellers met the legal disclosure requirement. 

It then falls upon the buyer to review and make an informed decision not only about their purchase of the physical property but on the health of the association as well.

Sellers want to consider the cost of the CA HOA Document Review like the cost of an insurance policy. Sellers cannot protect against a buyer suing, but for the small fee of an CA HOA Document Review, if a seller is sued when they have provided the review, according to attorneys who defend those lawsuits, sellers stand a strong probability of prevailing as well as being awarded attorneys fees and costs.

If you are selling a San Jose home, or any property in California that has an Homeowner's Association, be sure to hire an agent that knows the laws and advises you accordingly.

The same applies to buying a San Jose home.  If your agent does not recommend an HOA Document Review, based upon the laws and facts noted above, that agent, in my professional opinion, may well have failed at their duty to use utmost care in representing you.

Business is never slow for me. I create the time to associate with top professionals in the real estate industry. I build relationships that help me build a better business which ultimately positions me to serve my clients in ways that many real estate agents don't.

If you would like to learn more about a CA HOA Document Review or buying and selling a property with a homeowner's association, I'd be happy to buy you a cup of coffee and discuss the process in detail.

To fill that order simply call 1-408-972-1822.

 

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Comments(25)

Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Thanks, Patricia Feager, MBA, GRI, Cert Negotiations Expert, Military Relo Prof - I only hope more agents start to get the importance of HOA disclosure requirements and how to protect their buyers and sellers.

Oct 12, 2014 06:20 AM
Noah Seidenberg
Coldwell Banker - Evanston, IL
Chicagoland and Suburbs (800) 858-7917

Kathleen I know that the laws in California and Illinois regarding disclosures and HOAs during a sale are different but I do know this. Most associations even professionally managed do not always legally meet the obligations they are required to follow. Another reason you need a good Real Estate Attorney to guide the sale along smoothly.

Oct 12, 2014 06:20 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

It is important for sellers too, Wanda Kubat-Nerdin - they are the ones getting sued for not meeting disclosure requirements.

Oct 12, 2014 06:21 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Noah Seidenberg - we do not use attorneys in real estate sales in California. At least not as a matter of policy.  In California, buyers and sellers need a good real estate agent to advise them accordingly.  Thanks for stopping by.

Oct 12, 2014 06:22 AM
Noah Seidenberg
Coldwell Banker - Evanston, IL
Chicagoland and Suburbs (800) 858-7917

Really, Kathleen Daniels do the Realtors/Brokers do the title and closing parts to the transaction? Who walks the first time buyers thorough the mountain of paperwork during closing? Here in Illinois once we hit A/I we Realtors are nothing but an adviser. Interesting how laws are different state to state.

Oct 12, 2014 06:43 AM
Wanda Kubat-Nerdin - Wanda Can!
Red Rock Real Estate (435) 632-9374 - St. George, UT
St. George Utah Area Residential Sales Agent

Good point Kathleen.

Oct 12, 2014 07:48 AM
John Meussner
Mortgages in AZ, CA, CO, DE, FL, GA, IN, MD, MN, MT, NC, NJ, NV, OK, OR, PA, SC, SD, TN, TX, UT, VA, WI - Fair Oaks, CA
#MortgageMadeEasy Fair Oaks, CA 484-680-4852

Laws and processes like these are exactly why buyers & sellers need to use an experienced real estate agent.  Professional guidance and proper disclosure are vital to everything going smoothly before, during, and even after a purchase.

Oct 12, 2014 08:35 AM
George Souto
George Souto NMLS #65149 FHA, CHFA, VA Mortgages - Middletown, CT
Your Connecticut Mortgage Expert

Kathleen here in CT the Seller pays for the re-sale package which are also referred to as Condo Docs.  They are given a number of days to provide them and then they are reviewed by the Buyers Attorney.

Oct 12, 2014 08:41 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Noah Seidenberg - agents walk their clients through the mounds of paperwork. By the time the clients sign off at the title company, the mounds of paperwork is done. Agents "should" be advising their clients to get an HOA document review. We don't have attorneys to facilitate or review anything. The day may come when that changes. Perhaps it should already be that way ... but it is not.  Attorneys make more money defending agents lack of utmost care.

Oct 12, 2014 08:52 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

John Meussner - It is truly amazing there are not even more lawsuits than we have in California ... especially when sales involving HOAs are concerned.

Oct 12, 2014 08:53 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

George Souto it would seem that the attorneys have the HOA doc review covered then.  If they miss something then it falls on the attorney?

Oct 12, 2014 08:54 AM
Lisa Von Domek
Lisa Von Domek Team - Dallas, TX
....Experience Isn't Expensive.... It's Priceless!

Hello Kathleen,

HOA documents are required for full disclosure here as well, as documented in the contract terms.

Oct 12, 2014 11:50 AM
Maria Gilda Racelis
Home Buyers Realty, LLC-Manchester, Bolton. Vernon,Ellington - Manchester, CT
Home Ownership is w/in Reach. We Make it Happen!

Hi Kathleen, when I am acting as a buyer's agent for condos, I call the property management myself to ask for pending or current assessments. I don't rely on the listing agent's info sheet 100 percent.

Oct 12, 2014 11:11 PM
Rebecca Gaujot, Realtor®
Lewisburg, WV
Lewisburg WV, the go to agent for all real estate

We do not have many condos in this area, but like Marie above it is best to the property management of the condo for pending or current assessments.

Oct 13, 2014 03:56 AM
Gayle Rich-Boxman Fishhawk Lake Real Estate
John L Scott Market Center - Birkenfeld, OR
"Your Local Expert!" 503-739-3843

Kathleen, I'll second Patricia's remarks (comment#2) as she said it so well. I have an HOA in our community, but as with everything here, we are a bit, well...different. We don't have all of these hidden line items that might pop up a month after purchasing. I also live here full time, so I'm privy to the gray areas. Our CC&Rs run long, about 17 pages, but I send them to most who want to see them before purchasing. No big scares here and we're really solvent--thank God!

Oct 13, 2014 12:34 PM
Juli Vosmik
Dominion Fine Properties - Scottsdale, AZ
Scottsdale/Cave Creek, AZ real estate 480-710-0739

Kathleen, I'm having just this issue with the purchase I'm currently working on.  No one seems to want to get me the HOA docs.  Frustrating, to say the least.  

Oct 21, 2014 07:59 AM
Michael Jacobs
Pasadena, CA
Pasadena And Southern California 818.516.4393

Hi Kathleen -- I can't believe I didn't previously comment on this post.  Okay, you can throw a pie in my face --- much better than 50 lashes with a wet noodle(did I mention I also love pasta???  I digress).

As we have discussed by phone --- very informative post with a lots of detailed and valuable information.    

May 07, 2016 09:00 AM
Kathleen Daniels, Probate & Trust Specialist

That is a lethal combination Michael Jacobs - pie and pasta ... oh my! 


I would never throw pie in your face 

May 07, 2016 09:39 AM
Evelyn Johnston
Friends & Neighbors Real Estate - Elkhart, IN
The People You Know, Like and Trust!

I will check with our title company tomorrow, but I do not think we have a code or rule that requires an HOA document review.  But I want to know that answer.

May 08, 2016 12:23 PM
The Villages Realty
The Villages Realty - San Jose, CA
"Our Performance Will Move You!"

Hi Kathleen.  Just checking in to see what you've written, as we always like what you have to say...

Feb 03, 2017 07:59 AM
Eagle Ridge Realty
Eagle Ridge Realty - Gilroy, CA
"Our Performance Will Move You!"

Just checking in to see what is new.  Good luck during the coming selling season!

Feb 04, 2017 07:39 AM