Request for Homeowner Association Documents — RPI Form 135

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This form is used by a seller agent when preparing a listing/marketing package or performing a due diligence investigation on a unit in a common interest development (CID), to obtain homeowners’ association (HOA) documents for disclosing the condition of the property and CID to a buyer.

Your use of RPI Form 135

Managed housing

As known to all brokers and agents, a prospective buyer of a single family residential unit in a condominium project, or in any other residential common interest development (CID), is bargaining for living restrictions and costs of a homeowners’ association (HOA) operations. HOA management is unlike the experience of an owner of a self-managed single family residence (SFR).

A condo unit is more like renting an apartment under lease provisions calling for the passthrough of costs such as common area maintenance (CAMs). The prudent user, be they owner or tenant, does not agree to pay HOA costs without knowing the amounts. HOA reserves for replacements do not become a financial surprise when disclosed upfront for consideration by a buyer.

Ownership of a unit in a condominium project includes compulsory membership in the HOA. In turn, the HOA is charged with managing and operating the entire project.

As an owner of a unit in a CID and an HOA member, use and operating restrictions are placed on most types of conduct, including:

parking;
pets;
guests;
signs;
use of the pool, recreational and other like-type common facilities;
patio balconies;
care and maintenance of the unit;
structural alterations; and
the leasing of the premises.

One bargain implicit in becoming an owner-member is the owner’s consent to conform conduct to comply with extensive use restrictions. In exchange, every other owner-member agrees to conform to the same conduct.

The conduct of an owner in the use of their property, condo unit or otherwise, is restricted by standards set out in recorded documents affecting all parcels in the CID subdivision project. These standards are set out in HOA Covenants, Conditions and Restrictions (CC&Rs), as well as unrecorded HOA bylaws and operating policies.

HOA documentation: how obtained, why delivered?

A seller agent marketing a unit in an HOA is assured full cooperation by the association’s participation to facilitate the agent’s delivery to prospective buyers the documentation necessary to disclose the critical aspects of owning and occupying a unit in the HOA, including:

providing the seller agent, on written request from the owner of a unit, with items, statements and reviews regarding the permissible use of the unit and the financial condition of the HOA [See RPI Form 135];
providing escrow, on written request from the owner of the unit, with notices, statements, lists and disclosures regarding the status of the owner’s membership in the HOA; and
changing HOA administrative records to reflect the identification of the new owner when a buyer acquires ownership to the unit.

The HOA may charge a service fee to prepare and deliver the documents the owner requests. The service fee is limited to reimbursement of the association’s actual out-of-pocket cost incurred to deliver documents and change its internal records to reflect a new ownership. [Calif. Civil Code §§1366.1, 1368(c)]

The HOA has 10 days after the postmark on the mailing or hand delivery to the HOA of the owner’s written request for HOA documents to provide them to the owner. An intentional failure to timely deliver up the requested documents subjects the HOA to a penalty of up to $500. [CC §§1368(b), 1368(d)]

The seller agent, as part of the paperwork coupled with entry into a seller representation agreement (formerly called an MLS listing), obtains the seller’s signed request for the HOA’s CC&Rs and financial data. [See RPI Form 102]

The seller agent acquires the HOA documents upfront, on entering into employment to market any property. Otherwise, the seller agent is unable to deliver them to meet their agency obligation to perform different duties owed to the seller and the buyer. The delivery of the HOA documents to prospective buyers is mandated to take place as soon as practicable (ASAP) when a buyer expresses a further interest toward possibly acquiring a property.

The seller agent always provides HOA documents to a buyer prior to the seller entering into a purchase agreement. [See RPI Form 150]

Disclosures delivered prior to the seller’s acceptance or with their counteroffer to the buyer’s purchase offer mitigate the risk of buyer remedies adverse to the seller arising when contracting before delivering disclosures.

When the prospective buyer receives disclosures before the owner agrees to sell, the buyer has no justification, as with a delayed disclosure, to terminate the purchase agreement or restructure the price offered.

The role of the seller agent

Unless a seller agent is remiss, or simply ignorant of their duties owed to prospective buyers, the agent knows exactly what CID information and documents to include in a marketing package to properly market and disclose material facts about a condominium unit to prospective buyers, called transparency or symmetry of material facts.

Whether the seller agent makes the disclosures directly to the buyer or through the buyer broker, the disclosure rules for known facts are the same. [See RPI e-book Due Diligence and Disclosures, Chapter 18]

Critically, the seller agent, when soliciting employment and negotiating a seller representation agreement, prepares the owner’s request to the HOA to deliver up the CID’s use restrictions and HOA financials. The CID must deliver the materials within 10 days of the posted or hand delivered request. [CC §§1368(a), 1368(b); See RPI Form 135]

Primarily, the owner is the person initially obligated to make the disclosures by handing CC&Rs and financials to prospective buyers ASAP on an inquiry. It is quite easy for the owner, when well-assisted by their agent, to request and quickly receive the documents from the association.

Thus, the ready availability of the HOA documents dictates, as a professional and practical matter, that the disclosures are available to a buyer agent and their prospective buyer well before an offer is submitted to the owner for review, and maybe acceptance. [CC §1368(a)]

However, once the owner retains a broker to represent them to market the property for sale, it becomes the seller agent’s obligation to diligently fulfill the owner’s obligation to make the association documents available for prompt delivery to prospective buyers — ASAP.

Further, the seller agent attaches the HOA addendum when preparing the seller representation agreement. [See RPI Form 102 §7(d)]

The HOA addendum discloses to prospective buyers the property is located within an HOA. Negotiations await the buyer’s acknowledgement they understand the HOA fact. [See RPI Form 309]

Analyzing the request for HOA documents

A seller agent uses the Request for Homeowner Association Documents form published by Realty Publications, Inc. (RPI) when gathering documentation of material facts for inclusion in a marketing package, all part of their due diligence investigation of a unit in a common interest development (CID). The form allows the seller agent to obtain HOA documents which disclose the condition of the property, the HOA finances, and the CID operations to a buyer. [See RPI Form 135]

The Request for Homeowner Association Documents includes:

the HOA’s contact information [See RPI Form 135];
the seller agent’s contact information [See RPI Form 135];
the property address, seller’s name and seller’s mailing address [See RPI Form 135 §1];
how to deliver the HOA documents once complete [See RPI Form 135 §4];
a checklist of all the HOA documents for the HOA to fill out indicating whether they are attached, not available or available online [See RPI Form 135]; and
signatures of the seller, seller agent, HOA, and eventually the buyer. [See RPI Form 135]