Rian Jones Defeats $2 Million Claim Against a Homeowners Association

Epsten Grinnell & Howell represented a homeowners association in a lawsuit filed by Plaintiff, a former owner and President of the Association. The Plaintiff claimed that he was owed $2 million as compensation from the Association for his work in securing the agreement of the City of Oceanside to sell land to the Association. The Association’s buildings were constructed on land leased from the City of Oceanside for a term of 50 years. While the Plaintiff was serving as President of the Board of Directors, the Association entered into negotiations with the City to purchase the land. The Plaintiff acted as the point man for the Association in the negotiations with the City. The Association retained lawyers and other professionals to assist in the negotiations. The Plaintiff owned 5 units at the Association and, prior to the finalization of the deal with the City, he lost all 5 units in foreclosures and owed the Association more than $80,000.00 in past due assessments. Plaintiff resigned from the Board and was removed from his role as the point man in the negotiations. The Association was able to complete the deal with the City and purchased the land for $10 million. The Plaintiff sued the Association for fraud, misrepresentation, breach of contract, breach of fiduciary duty, and other claims. After prior counsel for the Association did not obtain the dismissal of the lawsuit, our firm took over as the attorneys for the Association. Attorney Rian Jones filed a successful motion for summary judgment and all of the Plaintiff’s claims were found to be without merit. The court has entered judgment in favor of the Association and the Association’s motion for determination of attorneys’ fees is pending.

The lawyers of the Civil Litigation Department of Epsten Grinnell & Howell handle all litigation matters for our clients (except for construction defect litigation). Our attorneys work hard to obtain the best possible results for our clients. The above information describes just one of our results.

The above informational update is provided by the Epsten Grinnell & Howell general civil litigation department, courtesy of its supervising attorney, Rian W. Jones. Rian has over 29 years of experience as a litigator and has tried over 50 Superior Court jury trials.

Results achieved in any given case depend upon the exact facts and circumstances of that case. Epsten Grinnell & Howell cannot guarantee a specific result in any legal matter. The results discussed in this advertisement are dependent on the facts of the cases, and those results will differ if based on different facts. View our entire disclaimer.

Carrie Timko and Rian Jones Obtain Summary Judgment in Favor of a Senior Community in Hemet

Attorneys Carrie Timko and Rian Jones represented a Senior Community Association located in Hemet in a lawsuit brought by a Plaintiff homeowner. The Association has an identified Special Benefit Area (SBA) within the development that is provided for in the Association’s governing documents. Homes within the SBA pay a higher monthly assessment than other homes within the Association because of greater maintenance services provided within the SBA. The Plaintiff claimed that the Association was over-assessing her and all other owners within the SBA and had been doing so for years. The Plaintiff sued for an injunction to prevent the Association from collecting the SBA assessments, for unfair business practices, for restitution of the over-assessments and for declaratory relief. Recently, the court granted the Association’s motion for summary judgment and found that the Plaintiff’s claims had no merit. The Association is entitled to recover its attorney’s fees from the Plaintiff and will be filing a motion to have the court determine the amount of those fees.

The lawyers of the Civil Litigation Department of Epsten Grinnell & Howell handle all litigation matters for our clients (except for construction defect litigation). Our attorneys work hard to obtain the best possible results for our clients. The above information describes just one of our results.

The above informational update is provided by the Epsten Grinnell & Howell general civil litigation department, courtesy of its supervising attorney, Rian W. Jones. Rian has over 29 years of experience as a litigator and has tried over 50 Superior Court jury trials.

Results achieved in any given case depend upon the exact facts and circumstances of that case. Epsten Grinnell & Howell cannot guarantee a specific result in any legal matter. The results discussed in this advertisement are dependent on the facts of the cases, and those results will differ if based on different facts. View our entire disclaimer.

Collecting a Judgment: Alternatives

By: Debora M. Zumwalt, Esq.

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Record an Abstract of Judgment

This converts the judgment into a lien on all real property then owned or later acquired by the judgment debtor. The lien is valid for ten years and can be renewed for additional ten year terms.

Wage Garnishment

A wage garnishment requires the employer to withhold a maximum of 25% of an employee’s wages, and pay that money to the County Marshal, who in turn pays the association. The association must locate the employer. The cost of a private investigator for this purpose starts at approximately $300.00.**

Levy on a Bank Account

This procedure is relatively simple and uses the services of the County Marshal’s office. However, the association has the burden of locating the bank account. A private investigator will charge approximately $300.00 to $500.00 to locate a bank account.

Rent Assignment

If the judgment debtor is receiving rents, it is necessary to file a motion with the court for an order that the rents be “assigned” to the association. Thereafter, all rents are paid directly to the association until the judgment is satisfied. The cost is approximately $1000.00 for this procedure.

Commission Assignment

If the judgment debtor earns commissions (i.e., real estate or insurance sales), it is necessary to file a motion with the court assigning those commissions to the association (identical to rent assignment). Thereafter, all commission earnings will be paid to the association.

Debtors Examination

This procedure involves serving the judgment debtor with a court order that he or she appear in court and answer questions, under oath, about income and assets. The cost is approximately $1000.00, including the attorney’s time. If the debtor appears and truthfully answers questions it is possible to learn of virtually everything that person earns and owns. Unfortunately, our experience has been that only about one out of five persons actually appear for the examination even though the court has ordered them to appear. The court will order an arrest warrant, but the process of compelling a non-appearing judgment debtor to appear can be lengthy and costly.

Locating Other Assets.

The judgment debtor may have other assets that can be taken to satisfy the judgment (e.g., automobile). The cost of an asset search starts at approximately $250.00 for the services of a private investigator.

Collection Agency

A final option is to retain the services of a collection agency to collect the judgment. Costs of such services can be as high as 50% of what is being sought. One such agency will add its fee to the judgment, and then share on a pro rata basis all funds as they are collected.

**Note: costs and fees are approximate only, and will vary depending on the complexity of the particular matter, and the amount of time actually expended.

Music & Movie Licenses: Common Interest Developments Must Obtain Music and Movie Licenses for Public Performances

By: Jodi A. Konorti, Esq.

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Many associations hold “movie-under-the-stars” nights. While these gatherings generally enhance the sense of community in an association, being hit with a copyright infringement lawsuit for failure to obtain a performance license can bring a quick end to the fun.

Copyright Law – Protected Work

The Federal Copyright Act (Title 17 of the U.S. Code) protects songwriters, music publishers, film producers, and the like, from unauthorized use of their copyrighted work. Federal copyright laws consider the creation and publication of music and film as “property” owned by the creator and publisher. If a work is copyrighted, the owner of the work has the exclusive right to publicly perform that work and give their permission for someone else to lawfully perform or display [1] the work in public. These laws directly affect community associations that play music or films in the clubhouse without obtaining a performance license before playing the work to the public in a community gathering.

What is a Public Performance?

In the performance licensing context, an association clubhouse or other common area may be considered a public place. While viewing a movie or listening to music in a private home does not require a license, to the extent a work is performed or displayed in a place “open to the public or at any place where a substantial number of persons outside the normal circle of family and its social acquaintances is gathered,” a public performance is deemed to exist (without regard to whether a fee is charged). (17 U.S.C. §101)[2] This definition extends to performances in semi-public places such as clubs and lodges (e.g., an association clubhouse), and presumably outdoor common areas. A conservative interpretation could extend this definition to association-sponsored events even if only residents are invited.

Examples of two cases demonstrate how copyright infringement liability can arise. In one case, an association held a dance, open to the public, with an orchestra and requested a $3.00 donation.[3] While the court did not opine on whether the clubhouse was a public place, it held an unauthorized public performance took place because the association invited the public and a fee was charged. The court’s opinion in this case indicates that if the association limited attendance to only members and did not request the donation, it may have avoided liability (liability might still have been found based on the number of guests, however).

In another case, a semi-private golf club played music in the dining room for 21 members and their guests.[4] The court held this transmission of music was a public performance because 21 guests constituted a substantial number of persons outside a normal circle of friends. This case indicates that an association clubhouse could be deemed a public place, and even when a small number of attendees gather in the clubhouse to listen to music, a license could be required.

Exemptions to License Requirement

Even if a performance is public, an association may be exempt from the license requirement if it can meet an exemption. The most obvious exception to the license requirement is if the performance is not “public.” In addition, the law exempts the playing of radio or television stations in a public place if the association does not charge a fee to enjoy the performance (the exemption does not include playing DVDs, CDs or iPod/mp3 playlists). The law also exempts performances that are not “transmitted,”[5] where there is no commercial advantage to the performers, organizers, or promoters, if there is also no admission charge. (17 U.S.C. §110(4)(A)) A common example of this exemption is a spontaneous sing-along at the clubhouse, but would probably not include an association-sponsored event with music playing, even without an admission charge.

Copyright Infringement Liability

Liability exists if, among other things, a work is copyrighted and the defendant publicly performed the work without first obtaining permission. The potential financial liability for copyright infringement is substantial. The Copyright Act provides for federal statutory damages of $750 – $30,000 for each inadvertent infringement, plus attorneys’ fees and costs. The damages substantially increase for intentional infringements (up to a $150,000).

Risk Management

Save for a few limited exceptions, the public performance of a work requires the permission of the owner through a performance license. To manage risk associated with federal copyright laws, community associations should either: (1) not allow the playing of music or movies in the common areas, or (2) obtain the necessary license from the appropriate performing rights organization (see Appendix). An association could also obtain an indemnity agreement from the performers, but this may not protect the association entirely, because joint and several liability is imposed on all parties who participate in the infringement.[6]

As the determination of whether a license is necessary is fact-specific, we recommend you contact your legal counsel for advice.

*********

Appendix: So, You Want to Have a Party…Now What?

If your party constitutes a public performance, the proper license(s) must be obtained from the relevant licensing entities. These entities ensure songwriters, music publishers and film producers are properly compensated when their work is played in public.

The three recognized Performing Rights Organizations (“PROs”) for music are:

  • The American Society of Composers, Authors and Publishers (“ASCAP”),
  • Broadcast Music, Inc. (“BMI”), and/or
  • The Society of European Stage Authors and Performers (“SESAC”).

Two of the major licensing firms for movies are:

  • Motion Picture Licensing Corporation, and/or
  • Criterion Pictures.
    • Each of these PROs maintains an expansive catalog of music and movies.
    • A license from one PRO does not allow the licensee to play a work from the catalog of the other two PROs – separate licenses must be obtained from whatever PRO protects the work.
    • Licensing fees are generally dependent on the number of times a work will be shown or played and the size of the audience.
    • PROs actively pursue license and copyright infringement violations.

Practically, the cost to obtain a license is likely much less than the cost of the risk to the association and directors and the cost to the association to litigate an infringement action and pay-out significant damages.

*********

Article adapted and reprinted with permission from Common Assessment Magazine, a publication of the Community Associations Institute San Diego Chapter, Summer 2013.

 


[1] “Display” is defined as “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images non-sequentially.” (17 U.S.C. §101)

“Perform” is broadly defined as “to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” (17 U.S.C. §101)

[2] Public performance is further defined as transmitting or communicating a performance or display of a work to a place open to the public, or to the public by means of any device whether the public is capable of receiving the performance in the same place or separate places and at the same time or at different times. This somewhat convoluted definition means that a community with a central television channel that plays music or movies that can be viewed from individual owners’ homes may be considered a public performance. (17 U.S.C. §101)

[3] Hinton v. Mainlands of Tamarac 611 F.Supp.494 (S.D. Fla. 1985).

[4] Fermata International Melodies, Inc. v. Champions Golf Club, Inc. 712 F.Supp. 1257 (S.D. Tex. 1989).

[5] “Transmit” is defined as communicating a performance by any device or process where images or sounds are received beyond the place from which they are sent. (17 U.S.C. § 101(2))

[6]  Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).

Statutes – New, Amended or Newly Added to Resource Book

The statutes identified with (‡) below are not in the printed copy of the Resource Book though they are on our more extensive Digital Version. The amendments in some of the sections identified below contain primarily technical or editorial changes.

For a complete listing please refer to our online Resource Book.

California Civil Code (Civ. Code)

  • §846 Exemption from Liability – Property Use for Recreational Purposes (Amended by SB 1289 / Ch. 92)
  • (‡)§945 Defect Standards Binding on Purchasers, Successors and Associations (Amended by SB 1289 / Ch. 92)
  • (‡)§1102.155 Required Disclosure of Noncompliant Water-conserving Plumbing (Amended by AB 1289 / Ch. 907)
  • §1542 Effect of General Release (Amended by SB 1431 / Ch. 157)
  • (‡)§1788.14 Debt Collectors – Other Prohibited Practices (Amended by AB 1526 / Ch. 247)
  • (‡)§2924 Exercising Power of Sale in a Mortgage or Deed of Trust (Amended by SB 818 / Ch. 404)

California Civil Code (Civ. Code): Davis-Stirling Act

  • §4040 Individual Document Delivery (Amended by SB 261 / Ch. 836)
  • §4041 Annual Notice of Owner Information (Amended by SB 1173 / Ch. 91)
  • §4360 Rule-Making Procedures (Amended by SB 261 / Ch. 836)
  • §4615 Mechanics’ Liens: Emergency Repairs (Amended by SB 1289 / Ch. 92)
  • §4745 Electric Vehicle Charging Stations (Amended by SB 1016 / Ch. 376)
  • §4745.1 Electric Vehicle Charging Stations: EV-Dedicated TOU Meter (Amended by SB 1016 / Ch. 376)
  • §5380 Managing Agent Duties in Handling Association Client Funds (Amended by AB 2912 / Ch. 396)
  • §5500 Board’s Duty to Review Financial Statements and Accounts (Amended by AB 2912 / Ch. 396)
  • §5501 Review of Financial Statements and Accounts (Added by AB 2912 / Ch. 396)
  • §5502 Account Deposits and Transfers (Added by AB 2912 / Ch. 396)
  • §5806 Fidelity Bond Coverage (Added by AB 2912 / Ch. 396)

California Corporations Code (Corp. Code)

  • §7220 Election and Selection of Directors; Term of Office (Amended by AB 2557 / Ch. 322)

California Business and Professions Code (Bus. & Prof. Code)

  • (‡)§11212 Definitions (Amended by AB 2884 / Ch. 285)
  • (‡)§11267 Managing Entity Required; Management Agreement Provisions (Amended by AB 2884 / Ch. 285)
  • §11506 Repeal of Statute (Repealed as of January 1, 2019 and amended by SB 1480 / Ch. 571)

California Code of Civil Procedure (Code Civ. Proc.)

  • §116.221 Jurisdiction up to $10,000 in Cases Filed by Natural Persons (Amended by SB 1289 / Ch. 92)
  • (‡)§116.550 Use of Interpreters; List (Repealed Effective January 1, 2019 by SB 1155 / Ch. 852)
  • (‡)§337 Four Years: Contracts and Accounts (Amended by AB 1526 / Ch. 247)
  • (‡)§338 Three Years: Suit based on Statute, Trespass, Fraud and Mistake, etc. (Amended by SB 1543 / Ch. 796)

California Vehicle Code (Veh. Code)

  • §21235 Motorized Scooter Restrictions (Amended by AB 2989 / Ch. 552)

You can view these bills and find or new legislation, at the California Legislative Information website: http://leginfo.legislature.ca.gov/. From there, you can click on Bill Information (further narrowing your search by Session Year, House (i.e., Assembly or Senate), by Bill number, etc.) or California Law (which allows you to browse or search through the official California Codes). Except for urgency legislation, the newly enacted bills will not appear in the online Codes until January 1, 2019.

 

Parliamentary Procedure Motions

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SP=Special Parliamentary or “Privileged”
Highest Priority (Generally Deals with Procedural Matters and Should be Disposed of At Once)

OP=Ordinary Parliamentary or “Incidental”
Next to Highest Priority (Generally Disposes of or Changes a Main Motion)

SM=Subsidiary to Main
Next to Lowest Priority (Generally Makes Changes in the Main Motion or Amendments to It)

M=Main
Lowest Priority (Waits until Subsidiary Motions Have Been Addressed)

Description – In General from Highest to Lowest Priority  Type In order when someone has the floor?  Second Needed?  Debate Allowed?  Vote Needed  Can Be Reconsidered?
Motions Likely at Either Board or Membership Meetings
Point of Order A SP Yes No No None B No
Appeal Chair’s Ruling SP Yes C Yes No Majority Yes
  1.  This motion challenges the propriety of whatever motion or debate is pending. It is used to remind the chair to enforce the rules.  For example, it can claim that debate time has been exceeded, that the debate is immaterial to the motion under debate, etc.
  2. The chair must make a ruling.  If it is in favor of the point of order, action must return to the proper agenda and enforcement of the rule asserted.  If the chair rules against the point of order, matters continue as they were before it was raised.  A 2/3 vote can overrule the chair, essentially suspending the rules.
  3. If done immediately after the ruling.
  4. This is used in place of the now archaic Parliamentary Inquiry or Point of Information.
    Description – In General from Highest to Lowest Priority  Type In order when someone has the floor?  Second Needed?  Debate Allowed?  Vote Needed  Can Be Reconsidered?
    Suspend the Rules / Change the Agenda SP No Yes No 2/3 No
    Request for Information D SP Yes No No None E No
    Request for Privilege SP Yes F No No None G No
    Adjourn / Recess Temporarily & Set Time to Resume H OP No Yes No Majority No
    Postpone Temporarily (to later in same meeting) OP No Yes No 2/3 No
  5. The motion asks for the chair to for information on an issue that is currently relevant to the pending matter, whether of what parliamentary rule applies, and the chair must provide the information.  For example, immediately before a vote, a member may raise a parliamentary inquiry to find out what vote is needed to pass the motion presented.
  6. Can interrupt a speaker if the urgency warrants it.
  7. This is used to correct a situation involving safety or comfort, including excessive noise, temperature, etc. and the chair must determine whether it is urgent enough to address immediately.
  8. Only the motion to recess may be amended, and only with respect to the duration of the recess.
    Description – In General from Highest to Lowest Priority  Type In order when someone has the floor?  Second Needed?  Debate Allowed?  Vote Needed  Can Be Reconsidered?
    Close Debate OP No Yes No 2/3 Yes I
    Postpone to a Later Date at Definite Time OP No Yes Yes J Majority No
    Reconsider a Prior Motion OP No Yes K Yes Majority No
    Amend a Pending Motion to Amend a Main Motion SM No Yes Yes/No L Majority Yes
    Amend a Main Motion SM No Yes Yes/No M Majority Yes
    Main Motion M No Yes Yes Majority Yes
    Adopt Standing Rules M No Yes Yes Majority Yes
  9. However, it must be reconsidered immediately.  It cannot be reconsidered once a vote is taken on the motion on which debate was closed.
  10. May debate only as to reasons for postponement and date for appearing on agenda again, but not as to merits of the main motion.  May be amended as to date for considering the motion again.
  11. Motion must be made by someone who voted on the prevailing side, but can be seconded by anyone.
  12. If the Main Motion itself is debatable.
  13. If the Main Motion itself is debatable.
    Description – In General from Highest to Lowest Priority  Type In order when someone has the floor?  Second Needed?  Debate Allowed?  Vote Needed  Can Be Reconsidered?
    Approve or Correct Minutes M No Yes Yes Majority Yes
    Motions Most Likely at Membership Meetings
    Order Roll Call if Vote in Doubt SP Yes Yes No Majority No
    Order Roll Call before Vote is Taken SP No Yes No Majority No
    Nominations, Close OP No Yes No 2/3 No
    Nomination, Make a M No No N Yes Majority No O

    NOTE:  Unless defined in your governing documents, majority typically means any vote over half of those PRESENT AND VOTING, either IN PERSON OR BY PROXY, provided a quorum is present.  Majority has a different meaning from one more than half, or 51%.  Both are technically greater than a simple majority.  In some cases, the difference may be critical.  Abstentions are usually considered to be neither a vote for or against.

  14. Many people are unaware that a second is not needed.
  15. Once a person is elected, learns of it, and does not decline, the election cannot be reconsidered, but the person can always resign.

 

Corp. Code §7521. Nomination Procedures; Corporations with 500 or More Members

California Corporations Code  >   Corp. Code §7521. Nomination Procedures; Corporations with 500 or More Members

■    A corporation with 500 or more members may provide that, except for directors who are elected as authorized by Section 7152 or 7153, and except as provided in Section 7522, any person who is qualified to be elected to the board of directors of the corporation may be nominated:
(a)  By any method authorized by the bylaws, or if no method is set forth in the bylaws by any method authorized by the board.
(b)  By petition delivered to an officer of the corporation, signed within 11 months preceding the next time directors will be elected, by members representing the following number of votes:

Number of Votes Eligible
to be Cast for Director
Disregarding any Provision
for Cumulative Voting

Number of Votes
Under 5,000 2 percent of voting power
5,000 or more

one-twentieth of 1 percent of
voting power but not less than 100

This subdivision does not apply to a corporation described in subdivision (c).
(c)  In corporations with one million or more members engaged primarily in the business of retail merchandising of consumer goods, by petition delivered to an officer of the corporation, signed within 11 months preceding the next time directors will be elected, by such reasonable number of members as is set forth in the bylaws, or if no number is set forth in the bylaws, by such reasonable number of members as is determined by the directors.
(d)  If there is a meeting to elect directors, by any member present at the meeting in person or by proxy if proxies are permitted. [1996]

Civil Code §5570. Required Assessment and Reserve Funding Disclosure Summary

California Civil Code  >   Part 5. Common Interest Developments (Davis-Stirling Common Interest Development Act)  >  Chapter 7. Finances  > Article 3. Reserve Planning  >  Civil Code §5570. Required Assessment and Reserve Funding Disclosure Summary

(a)  The disclosures required by this article with regard to an association or a property shall be summarized on the following form:

Assessment and Reserve Funding Disclosure Summary For the Fiscal Year Ending _____

(1)   The regular assessment per ownership interest is $_____ per ____.  Note: If assessments vary by the size or type of ownership interest, the assessment applicable to this ownership interest may be found on page _____ of the attached summary.

(2)   Additional regular or special assessments that have already been scheduled to be imposed or charged, regardless of the purpose, if they have been approved by the board and/or members:

Date Assessment
will be due
Amount per
ownership
interest per
month or year
(If assessments
are variable, see note immediately
below):
Purpose of the assessment:
Total:

Note: If assessments vary by the size or type of ownership interest, the assessment applicable to this ownership interest may be found on page ____ of the attached report.

(3)   Based upon the most recent reserve study and other information available to the board of directors, will currently projected reserve account balances be sufficient at the end of each year to meet the association’s obligation for repair and/or replacement of major components during the next 30 years?

Yes _____ No _____

(4)   If the answer to (3) is no, what additional assessments or other contributions to ■ reserves would be necessary to ensure that sufficient reserve funds will be available each year during the next 30 years that have not yet been approved by the board or the members?

Approximate date assessment will be due Amount per ownership interest per month or year
Total:

(5)   All major components are included in the reserve study and are included in its calculations.

(6)   Based on the method of calculation in paragraph (4) of subdivision (b) of Section 5570, the estimated amount required in the reserve fund at the end of the current fiscal year is $____, based in whole or in part on the last reserve study or update prepared by ____ as of ____ (month), ____ (year). The projected reserve fund cash balance at the end of the current fiscal year is $____, resulting in reserves being ____ percent funded at this date.

If an alternate, but generally accepted, method of calculation is also used, the required reserve amount is $____. (See attached explanation)

(7)   Based on the method of calculation in paragraph (4) of subdivision (b) of Section 5570 of the Civil Code, the estimated amount required in the reserve fund at the end of each of the next five budget years is $______, and the projected reserve fund cash balance in each of those years, taking into account only assessments already approved and other known revenues, is $______, leaving the reserve at ______ percent funded. If the reserve funding plan approved by the association is implemented, the projected reserve fund cash balance in each of those years will be $______, leaving the reserve at ______ percent funded.

Note: The financial representations set forth in this summary are based on the best estimates of the preparer at that time. The estimates are subject to change. At the time this summary was prepared, the assumed long-term before-tax interest rate earned on reserve funds was ____ percent per year, and the assumed long-term inflation rate to be applied to major component repair and replacement costs was ____ percent per year.

(b)   For the purposes of preparing a summary pursuant to this section:

(1)   “Estimated remaining useful life” means the time reasonably calculated to remain before a major component will require replacement.

(2)   “Major component” has the meaning used in Section 5530. Components with an estimated remaining useful life of more than 30 years may be included in a study as a capital asset or disregarded from the reserve calculation, so long as the decision is revealed in the reserve study report and reported in the Assessment and Reserve Funding Disclosure Summary.

(3)   The form set out in subdivision (a) shall accompany each annual budget report or summary thereof that is delivered pursuant to Section 5300. The form may be supplemented or modified to clarify the information delivered, so long as the minimum information set out in subdivision (a) is provided.

(4)   For the purpose of the report and summary, the amount of reserves needed to be accumulated for a component at a given time shall be computed as the current cost of replacement or repair multiplied by the number of years the component has been in service divided by the useful life of the component. This shall not be construed to require the board to fund reserves in accordance with this calculation. [2016]

Civil Code §4528. Form For Billing Disclosures

California Civil Code  >   Part 5. Common Interest Developments (Davis-Stirling Common Interest Development Act)  >  Chapter 4. Ownership and Transfer of Interests  > Article 2. Transfer Disclosure  >  Civil Code §4528. Form For Billing Disclosures

The form for billing disclosures required by Section 4530 shall be in at least 10-point[1] type and substantially the following form:

 

CHARGES FOR DOCUMENTS PROVIDED AS REQUIRED BY SECTION 4525*[2]

The seller may, in accordance with Section 4530 of the Civil Code, provide to the prospective purchaser, at no cost, current copies of any documents specified by Section 4525 that are in the possession of the seller.

 

A seller may request to purchase some or all of these documents, but shall not be required to purchase ALL of the documents listed on this form.

 

Property Address

 

Owner of Property

 

Owner’s Mailing Address (If known or different from property address.)

 

Provider of the Section 4525 Items:

 

Print Name _________ Position or Title _________ Association or Agent

 

Date Form Completed

 

 

Check or Complete Applicable Column or Columns Below

Document Civil Code Section Included Fee  for Document

[3]

Not Available (N/A), or Not Applicable (N/App), or Directly Provided by Seller and confirmed in writing by Seller as a current document (DP)
Articles of Incorporation or statement that ■ not incorporated Section 4525(a)(1)
CC&Rs Section 4525(a)(1)
Bylaws Section 4525(a)(1)
Operating Rules Section 4525(a)(1)
Age restrictions, if any Section 4525(a)(2)
Rental restrictions, if any Section 4525(a)(9)
Annual budget report or summary, including ■ reserve study Sections 5300 and 4525(a)(3)
Assessment and ■ reserve funding disclosure summary Sections 5300 and 4525(a)(4)
Financial statement review Sections 5305 and 4525(a)(3)
Assessment enforcement policy Sections 5310 and 4525(a)(4)
Insurance summary Sections 5300 and 4525(a)(3)
Regular assessment Section 4525(a)(4)
Special assessment Section 4525(a)(4)
Emergency assessment Section 4525(a)(4)
Other unpaid obligations of seller Sections 5675 and 4525(a)(4)
Approved changes to assessments Sections 5300 and 4525(a)(4), (8)
Settlement notice regarding common area defects Sections 4525(a)(6), (7) and 6100
Preliminary list of defects Sections 4525(a)(6), 6000, and 6100
Notice(s) of violation Sections 5855 and 4525(a)(5)
Required statement of fees Section 4525
Minutes of regular board meetings conducted over the previous 12 months, if requested Section 4525(a)(10)
Total fees for these documents:
* The information provided by this form may not include all fees that may be imposed before the close of escrow. Additional fees that are not related to the requirements of Section 4525 may be charged separately.

[2017 – Based on former §1368.2]

[1]       See example in footnote 32, page 212 in Civil Code §5300.

[2]       Note:  The table borders shown in this section do not appear in the statute, but we have added them to make the section easier to read and the form easier to complete.

[3]       Because Civil Code §4530 prohibits bundling of documents, a separate fee probably needs to be charged for each original document and each separate amendment to that document.  Thus a separate line or row would need to be added for each separate document, and it would be best to identify them by recording date and document number for CC&Rs and effective date or filing date for other documents.


[19] Note: The borders shown in this section do not appear in the statute, but we have added them to make the section easier to read and the form easier to complete.

 

Civil Code §1102.6. Mandatory Real Estate Transfer Disclosure Statement

California Civil Code  >  Civil Code §1102.6. Mandatory Real Estate Transfer Disclosure Statement

(amendments operative July 1, 2014)
The disclosures required by this article pertaining to the property proposed to be transferred are set forth in, and shall be made on a copy of, the following disclosure form:

 

REAL ESTATE TRANSFER DISCLOSURE STATEMENT

THIS DISCLOSURE STATEMENT CONCERNS THE REAL PROPERTY SITUATED IN THE CITY OF _____, COUNTY OF _____, STATE OF CALIFORNIA, DESCRIBED AS ______________. THIS STATEMENT IS A DISCLOSURE OF THE CONDITION OF THE ABOVE DESCRIBED PROPERTY IN COMPLIANCE WITH SECTION 1102 OF THE CIVIL CODE AS OF _____, 20___. IT IS NOT A WARRANTY OF ANY KIND BY THE SELLER(S) OR ANY AGENT(S) REPRESENTING ANY PRINCIPAL(S) IN THIS TRANSACTION, AND IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE PRINCIPAL(S) MAY WISH TO OBTAIN.

I

COORDINATION WITH OTHER DISCLOSURE FORMS

This Real Estate Transfer Disclosure Statement is made pursuant to Section 1102 of the Civil Code. Other statutes require disclosures, depending upon the details of the particular real estate transaction (for example: special study zone and purchase-money liens on residential property).
Substituted Disclosures: The following disclosures and other disclosures required by law, including the Natural Hazard Disclosure Report/Statement that may include airport annoyances, earthquake, fire, flood, or special assessment information, have or will be made in connection with this real estate transfer, and are intended to satisfy the disclosure obligations on this form, where the subject matter is the same:
Inspection reports completed pursuant to the contract of sale or receipt for deposit.
Additional inspection reports or disclosures:
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________

II

SELLER’S INFORMATION

The Seller discloses the following information with the knowledge that even though this is not a warranty, prospective Buyers may rely on this information in deciding whether and on what terms to purchase the subject property. Seller hereby authorizes any agent(s) representing any principal(s) in this transaction to provide a copy of this statement to any person or entity in connection with any actual or anticipated sale of the property.
THE FOLLOWING ARE REPRESENTATIONS MADE BY THE SELLER(S) AND ARE NOT THE REPRESENTATIONS OF THE AGENT(S), IF ANY. THIS INFORMATION IS A DISCLOSURE AND IS NOT INTENDED TO BE PART OF ANY CONTRACT BETWEEN THE BUYER AND SELLER:
Seller ____is _____is not occupying the property.

A. The subject property has the items checked below (read across): *

___Range ___Oven ___Microwave
___Dishwasher ___Trash Compactor ___Garbage Disposal
___Washer/Dryer

Hookups

___Rain Gutters
___Burglar Alarms ___Carbon Monoxide

Device(s)

___Fire Alarm
___TV Antenna ___Satellite Dish ___Intercom
___Central Heating ___Central Air Cndtng. ___Evaporator Cooler(s)
___Wall/Window Air

Cndtng.

___Sprinklers ___Public Sewer System
___Septic Tank ___Sump Pump ___Water Softener
___Patio/Decking ___Built-in Barbecue ___Gazebo
___Sauna
___Hot Tub

___Locking Safety

Cover

___Pool

___Child Resistant

Barrier

___Spa

___Locking Safety

Cover

___Security Gate(s) ___Automatic Garage

Door Opener(s)

___Number Remote

Controls

Garage:

___Attached ___Not Attached ___Carport

Pool/Spa Heater:

___Gas ___Solar ___Electric

Water Heater:

___Gas

___Private Utility or

Other___________

Water Supply:

___City ___Well ___Water-conserving

plumbing fixtures

Gas Supply:

___Utility ___Bottled
___Window Screens ___Window Security

Bars

___Quick Release

Mechanism on

Bedroom Windows

Exhaust Fan(s) in ______________________________________ 220 Volt Wiring in ____________________________________________

Fireplace (s) in ________________________________________ Gas Starter ________________________________________________

Roof (s): Type: ________________________________________ Age: ______________________________________________ (approx.)

Other: ____________________________________________________________________________________________________

Are there, to the best of your (Seller’s) knowledge, any of the above that are not in operating condition? _____Yes _____No. If yes, then describe. (Attach additional sheets if necessary):

_____________________________________________________________________________________________________________

_____________________________________________________________________________________________________________

_____________________________________________________________________________________________________________

B. Are you (Seller) aware of any significant defects/malfunctions in any of the following?
_____Yes _____No. If yes, check appropriate space(s) below.

___ Interior Walls ___ Ceilings ___ Floors
___ Exterior Walls ___ Insulation ___ Roof(s)
___ Windows ___ Doors ___ Foundation
___ Slab(s) ___ Driveways ___ Sidewalks
___ Walls/Fences ___ Electrical Systems ___ Plumbing/

Sewers/Septics

___Other Structural Components (Describe: _____________________________________________________________________________________________________________
_________________________­____________________________________________________________________________________)

If any of the above is checked, explain. (Attach additional sheets if necessary):

_____________________________________________________________________________________________________________

_____________________________________________________________________________________________________________

_____________________________________________________________________________________________________________

*Installation of a listed appliance, device, or amenity is not a precondition of sale or transfer of the dwelling. The carbon monoxide device, garage door opener, or child- resistant pool barrier may not be in compliance with the safety standards relating to, respectively, carbon monoxide device standards of Chapter 8 (commencing with Section 13260) of Part 2 of Division 12 of, automatic reversing device standards of Chapter 12.5 (commencing with Section 19890) of Part 3 of Division 13 of, or the pool safety standards of Article 2.5 (commencing with Section 115920) of Chapter 5 of Part 10 of Division 104 of, the Health and Safety Code. Window security bars may not have quick-release mechanisms in compliance with the 1995 edition of the California Building Standards Code. Section 1101.4 of the Civil Code requires all single-family residences built on or before January 1, 1994, to be equipped with water-conserving plumbing fixtures after January 1, 2017. Additionally, on and after January 1, 2014, a single-family residence built on or before January 1, 1994, that is altered or improved is required to be equipped with water-conserving plumbing fixtures as a condition of final approval. Fixtures in this dwelling may not comply with Section 1101.4 of the Civil Code.

C. Are you (Seller) aware of any of the following:

1. Substances, materials, or products which may be an

environmental hazard such as, but not limited to, asbestos,

formaldehyde, radon gas, lead-based paint, mold, fuel or

chemical storage tanks, and contaminated soil or water on the

subject property

___Yes ___ No
2. Features of the property shared in common with

adjoining landowners, such as walls, fences, and driveways,

whose use or responsibility for maintenance may have an

effect on the subject property

___Yes ___ No
3. Any encroachments, easements or similar matters that

may affect your interest in the subject property

___Yes ___ No
4. Room additions, structural modifications, or other

alterations or repairs made without necessary permits

___Yes ___ No
5. Room additions, structural modifications, or other

alterations or repairs not in compliance with building codes

___Yes ___ No
6. Fill (compacted or otherwise) on the property or any

portion thereof

___Yes ___ No
7. Any settling from any cause, or slippage, sliding, or

other soil problems

___Yes ___ No
8. Flooding, drainage or grading problems ___Yes ___ No
9. Major damage to the property or any of the structures

from fire, earthquake, floods, or landslides

___Yes ___ No
10. Any zoning violations, nonconforming uses, violations

of “setback” requirements

___Yes ___ No
11. Neighborhood noise problems or other nuisances ___Yes ___ No
12. CC&Rs or other deed restrictions or obligations ___Yes ___ No
13. Homeowners” Association which has any authority over

the subject property

___Yes ___ No
14. Any “common area” (facilities such as pools, tennis

courts, walkways, or other areas co-owned in undivided

interest with others

___Yes ___ No
15. Any notices of abatement or citations against the

property

___Yes ___ No
16. Any lawsuits by or against the Seller threatening to or affecting this real property, claims for damages by the Seller pursuant to Section 910 or 914 threatening to or affecting this real property, claims for breach of warranty pursuant to Section 900 threatening to or affecting this real property, or claims for breach of an enhanced protection agreement pursuant to Section 903 threatening to or affecting this real property, including any lawsuits or claims for damages pursuant to Section 910 or 914alleging a defect or deficiency in this real property or “common areas” facilities such as pools, tennis courts, walkways, or other areas co-owned in undivided interest with others ___Yes ___ No

If the answer to any of these is yes, explain. (Attach additional sheets if necessary.): ____________________________________________

_____________________________________________________________________________________________________________

_____________________________________________________________________________________________________________

D.    1. The Seller certifies that the property, as of the close of escrow, will be in compliance with Section 13113.8 of the Health and Safety Code by having operable smoke detectors(s) which are approved, listed, and installed in accordance with the State Fire Marshal’s regulations and applicable local standards.

  2. The Seller certifies that the property, as of the close of escrow, will be in compliance with Section 19211 of the Health and Safety Code by having the water heater tank(s) braced, anchored, or strapped in place in accordance with applicable law.

Seller certifies that the information herein is true and correct to the best of the Seller’s knowledge as of the date signed by the Seller.

Seller __________________________________________________ Date _________________________________________________

Seller __________________________________________________ Date _________________________________________________

III

AGENT’S INSPECTION DISCLOSURE

(To be completed only if the Seller is represented by an agent in this transaction.)
THE UNDERSIGNED, BASED ON THE ABOVE INQUIRY OF THE SELLER(S) AS TO THE CONDITION OF THE PROPERTY AND BASED ON A REASONABLY COMPETENT AND DILIGENT VISUAL INSPECTION OF THE ACCESSIBLE AREAS OF THE PROPERTY IN CONJUNCTION WITH THAT INQUIRY, STATES THE FOLLOWING:
Agent notes no items for disclosure.
Agent notes the following items:

______________________________________________________________________________________________________________

______________________________________________________________________________________________________________

______________________________________________________________________________________________________________

______________________________________________________________________________________________________________

Agent (Broker
Representing Seller) ______________________________ By ______________________________ Date ______________________

(Please Print)                               (Associate Licensee
or Broker Signature)

IV

AGENT’S INSPECTION DISCLOSURE

(To be completed only if the agent who has obtained the offer is other than the agent above.)
THE UNDERSIGNED, BASED ON A REASONABLY COMPETENT AND DILIGENT VISUAL INSPECTION OF THE ACCESSIBLE AREAS OF THE PROPERTY, STATES THE FOLLOWING:
Agent notes no items for disclosure.
Agent notes the following items:

______________________________________________________________________________________________________________

______________________________________________________________________________________________________________

______________________________________________________________________________________________________________

______________________________________________________________________________________________________________

Agent (Broker
Obtaining the Offer) ______________________________ By _______________________________ Date ______________________

(Please Print)                               (Associate License
or Broker Signature)

V

BUYER(S) AND SELLER(S) MAY WISH TO OBTAIN PROFESSIONAL ADVICE AND/OR INSPECTIONS OF THE PROPERTY AND TO PROVIDE FOR APPROPRIATE PROVISIONS IN A CONTRACT BETWEEN BUYER(S) AND SELLER(S) WITH RESPECT TO ANY ADVICE/INSPECTIONS/ DEFECTS.
I/WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS STATEMENT.

Seller __________________________ Date _________________ Buyer _________________________ Date __________________

Seller __________________________ Date _________________ Buyer _________________________ Date __________________

Agent (Broker
Representing Seller) _____________________________ By ______________________________ Date _______________________

(Please Print)                              (Associate Licensee
or Broker Signature)

Agent (Broker
Obtaining the Offer) ______________________________ By ______________________________ Date _______________________

(Please Print)                               (Associate Licensee
or Broker Signature)

SECTION 1102.3 OF THE CIVIL CODE PROVIDES A BUYER WITH THE RIGHT TO RESCIND A PURCHASE CONTRACT FOR AT LEAST THREE DAYS AFTER THE DELIVERY OF THIS DISCLOSURE IF DELIVERY OCCURS AFTER THE SIGNING OF AN OFFER TO PURCHASE. IF YOU WISH TO RESCIND THE CONTRACT, YOU MUST ACT WITHIN THE PRESCRIBED PERIOD.
A REAL ESTATE BROKER IS QUALIFIED TO ADVISE ON REAL ESTATE. IF YOU DESIRE LEGAL ADVICE, CONSULT YOUR ATTORNEY. [2013]