Updated information on HOA docs.
Spoke with CAR legal hotline today regarding the best way to protect sellers from being liable for missing information in the HOA docs.
The seller's responsibility is to ensure copies of HOA docs are delivered to the buyer in an orderly fashion. If a seller authorizes an escrow officer or listing agent to order the documents, he is still fulfilling his obligation to provide the documents.
Interesting-- the HOA Information Request form was primarily created by CAR to provide a formal way of requesting docs rather than just typing up a letter.
Here is the tricky part. If you have the HOA complete the list on the second page, then the SELLER becomes obligated to ensure all the items have been delivered to the buyer by the HOA (no blanks next to documents).
Because the CAR purchase contract states that seller is responsible (due to the fact that many HOA's will only fulfill requests initiated by the seller) for delivery and itemization, they then must initiate the process and then itemization may come from the HOA questionnaire.
It was agreed that a possible alternative is to simply have the buyer acknowledge receipt of HOA docs on a receipt for reports, or on the cover page of the HOA docs or sign each individual section (Bylaws, CCRs, Budget, etc.). In all the examples, it's a good idea to identify how many pages there are.
We asked about amended by-laws and the attorney advised that amended bylaws are still categorized as bylaws. HOA's should always provide updated and/or amended bylaws. Therefore amendments should always be included.
My husband commented that his seller was being charge $90 by an HOA to complete the HOA info request form. The attorney said that any charges must be reasonably justified and not be used as a profit center.
Also if an HOA delays completing the form or providing requested documents and as a result causes a delay in closing, the HOA may be liable for damages
So what's the bottom line? Unfortunately I don't have a clear cut answer for you. I personally do not want the responsibility of trying to sort out what is and what is not in the HOA docs. The HOA has a duty and responsibility to provide ALL information AVAILABLE to the buyer when requested to do so.