Documents to be provided to prospective purchaser; Civil penalties for willful violations; Attorney fees

CALIFORNIA CIVIL CODE

SECTION 1368.

Text
(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 therefore, 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 preliminary 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 preliminary list of defects pursuant to this paragraphdoes not waive any privilege attached to the document. The preliminary 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.
(b) Upon written request, an association shall, within 10 days of the mailing or delivery of the request, provide the owner of a separate interest with a copy of the requested items specified in paragraphs (1) to (8), inclusive, of subdivision (a). The association may charge a fee for this service that may not exceed the association’s reasonable cost to prepare and reproduce the requested items.
(c) (1) Subject to the provisions of 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 amendments made to this subdivision by the act adding this paragraph do not apply to a community service organization or similar entity 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 satisfies all of the following requirements:
(i) The community service organization or similar entity is not an organization or entity described in subparagraph (A).
(ii) The community service organization or similar entity was established and received a transfer fee prior to January 1, 2004.
(iii) On and after January 1, 2006, the community service organization or similar 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 community service organization or similar 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 money 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.
(d) Any person or entity who willfully violates this section is liable to the purchaser of a separate interestthat 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.
(e) Nothing in this section affects the validity of title to real property transferred in violation of this section.
(f) 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.
(g) 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.

Added Stats 1985 ch 1596 § 4. Amended Stats 1987 ch 596 § 2; Stats 1991 ch 412 § 3 (AB 623); Stats 1995 ch 199 § 3 (SB 300); Stats 1997 ch 632 § 2 (AB 76); Stats 2000 ch 257 § 2 (AB 1823); Stats 2002 ch 1111 § 9 (AB 2289), ch 1117 § 3.5 (AB 643); Stats 2003 ch 393 § 1, ch 557 § 25.5 (AB 512).
ANNOTATIONS
ANNOTATIONS
Former Sections:
Former § 1368, similar to present Prob C §§ 12001, 12003-12005, 16304, was enacted 1872 and repealed Stats 1931 ch 281 (Prob C § 1700).
Editor’s Notes–
There were two other sections of this number, both relating to documents to be provided to prospective purchaser, which were added Stats 1985 ch 1003 § 2, ch 1505 § 4 and repealed Stats 1986 ch 9 §§ 4, 5, effective February 25, 1986.
Amendments:
1987 Amendment:
(1) Added subd (c); and (2) redesignated former subds (c)-(e) to be subds (d)-(f).
1991 Amendment:
Amended subd (a) by adding (1) “the association’s current regular and special assessments and fees, as well as” in the first sentence of subd (a)(4); and (2) subd (a)(5).
1995 Amendment:
Substituted “documents” for “financial statement” in subd (a)(3).
1997 Amendment:
(1) Added subds (a)(5) and (a)(6); (2) redesignated former subd (a)(5) to be subd (a)(7); and (3) substituted “to (7), inclusive,” for “, (2), (3), and (4)” in subd (b).
2000 Amendment:
(1) Amended subd (a)(4) by (a) adding “obtained” after “in writing” near the beginning; (b) deleting “as well as” after “assessments and fees,”; (c) substituting “that” for “which” after “interest development”; (d) adding “, and any monetary fines or penalties levied upon the owner’s interest and unpaid on the date of the statement”; and (e) adding “obtained from an authorized representative”; (2) added subd (a)(5); (3) redesignated former subds (a)(5)-(a)7) to be subds (a)(6)-(a)(8); and (4) substituted “paragraphs (1) to (8)” for “paragraphs (1) to (7)” in subd (b).
2002 Amendment:
(1)Added “or 1367.1″ in subd (a) (4); and(2)added “fee” in subd (c).
2002 Amendment:
(1)Amended subd (a) by (a) adding “, 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” in subd (1); (b) adding “or 1367.1″ in subd (4).
(1)Amended subd (a) by(a) adding “, including a copy of the association’s articles of incorporation, or, if not incorporated, a statement in writing from an authorized reprsentative of the association that the association is not incorporated”; (b) adding “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.” in subd (5);(i) adding the second and third sentences; (c)adding subds (6), (7), and (8);(2) added subds (b), (c), and (d); (3)deleted “In an action to enforce this liability, the prevailing party shall be awarded reasonable attorneys’ fees.”; (4) deleted subd (e) which read: “(e) Nothing in this section affects the validity of title to real property transferred in violation of this section.”; (5) deleted subd (f) which read: “(f) 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.”.
Historical Derivations:
Former § 1360, as added Stats 1976 ch 395 § 1, amended Stats 1982 ch 805 § 1, Stats 1983 ch 1288 § 1.

Law Revision Commission Comments:
2003- Comment. Subdivision (a) of Section 1368 is amended to make clear that the required disclosure of the governing documents of a common interest development includes disclosure of any operating rules. See also Sections 1351(a) (”association” defined), 1351(c) (”common interest development” defined), 1351(j) (”governing documents” defined), 1351(l) (”separate interest” defined).
Collateral References:
Cal Forms Pl & Practice (Matthew Bender) ch 124 “Condominiums and Other Common Interest Developments”
Handling real property sales transactions. CEB Action Guide
Taking a closer look: Significant new California legislation relating to real property enacted in 1987. 11 CEB Real Prop L Rep No. 2 p 37
Miller & Starr, Cal Real Estate 3d §§ 25:45, 25:111, 25:125
Law Review Articles:
1988 legislative summary. 7 Cal Real Prop J No. 1 p 1
Review of 1985 legislation. 17 Pacific LJ 761
NOTES OF DECISIONS
NOTES OF DECISIONS
Civ. Code § 1368, does not impose a duty on a homeowners association to disclose construction defects to prospective purchasers, and no such duty arises as a result of the fact that a corporation is required to keep adequate books and records pursuant to Corp. Code, § 8320. Nor may the duty to disclose be predicated on the principle that everyone must abstain from conduct that unreasonably causes injury to another (Civ. Code, §§ 1708, 1714, subd. (a)). Kovich v Paseo Del Mar Homeowners’ Assn. (1996, 2nd Dist) 41 Cal App 4th 863, 48 Cal Rptr 2d 758