6. Under What Conditions are the POS and the RC Required?

The POS is required of the Declarant and the RC is required upon the resale of the unit by the Seller in all cases except (1) the sale of nonresidential units (e.g. business or commercial) if the Seller and Purchaser agree in writing, (2) the conveyance by gift, devise or descent, (3) a conveyance by court order, (4) a disposition by government or governmental agencies, (5) a conveyance by foreclosure, (6) a disposition of all the units in a condominium in a single transaction, or (7) a disposition to someone other than a purchaser, e.g. a mortgagee, Declarant, dealer or tenant under a lease for less than 20 years.

PRACTICE TIP: If representing a lender on a foreclosed unit, a POS and an RC will not be required.

a. What Is Contained In the POS?

The POS requires the Declarant to disclose certain information relative to the Declarant and the condominium project including: name and address of the condominium; the name and address of the Declarant; name and address of the management company if any; the relationship of the management company to the Declarant, if any; a list of up to the 5 most recent condominium projects completed by the Declarant or an affiliate of the Declarant within the past five years, including the names of the condominiums, their addresses, and the number of existing units in each; the nature of the interest being offered for sale; a brief description of the permitted uses and use restrictions pertaining to the units and the common elements; a brief description of the restrictions if any on the renting or leasing of units by the Declarant or other unit owners, together with the rights, if any, of the Declarant to rent or lease a majority of the units; the number of existing units in the condominium and the maximum number of units that may be added to the condominium; a list of the principal common amenities in the condominium which materially affect the value of the condominium and those that will be added to the condominium; a list of the limited common elements assigned to the units being offered for sale; the identification of any real property not in the condominium, the owner of which has access to any of the common elements, and a description of the terms of such access; the identification of any real property not in the condominium to which unit owners have access and a description of the terms of such access; the status of construction of the units and common elements, including estimated days of completion if not completed; the estimated current common expense liability for units being offered; an estimate of any payment with respect to the common expense liability for the units being offered which will be due at closing; the estimated current amount and purpose of any fees not included in common expenses and charges by the Declarant, or the Association, for the use of any common elements; any assessments which have been agreed to or are known to the Declarant and which, if not paid, may constitute a lien against any units or common elements in favor of any governmental agency; the identification of any parts of a condominium, other than units, which any individual owner will have the responsibility for maintaining; if the condominium involves a conversion condominium, the information required under the conversion condominium provisions (RCW 64.34.415); whether time-sharing is restricted or prohibited, and if restricted, a general description of such restrictions; a list of all development rights reserved to the Declarant and all special Declarant rights reserved to the Declarant, together with the date such rights must terminate, and a copy of or reference by recording number to any recording or transfer of special Declarant rights; a description of any material differences in the terms of furnishings, fixtures, finishes, and equipment between any model unit available to the Purchaser at the time the Agreement for sale was executed and the unit being offered; any liens on real property to be conveyed to the Association required to be disclosed; a list of any physical hazards known to the Declarant which particularly affect the condominium or immediate vicinity in which the condominium is located, and which are not readily ascertainable by the Purchaser; a brief description of any construction warranties to be provided to the Purchaser; any building code violations, citations received by the Declarant in connection with the condominium which have not been corrected; a statement of any unsatisfied judgments or pending suits against the Association, a statement of the status of any pending suits material to the condominium of which the Declarant has actual knowledge, and a statement of any litigation brought by Owners’ Association, unit owners, or governmental entity in which the Declarant or any affiliate of Declarant has been defendant, arising out of the construction, sale or administration of any condominium within the previous five years, together with the results thereof, if known; any rights of first refusal to lease or purchase any unit or any of the common elements; the extent to which the insurance provided by the association covers furnishings, fixtures, equipment located in the unit; a notice which describes a purchaser’s right to cancel the purchase agreement or extend the closing; any reports or statements required under other sections of the WCA; a list of documents which the prospective purchaser is entitled to receive from the Declarant before the rescission period commences; a notice which states: “a purchaser may not rely on any representation or express warranty unless it is contained in the POS or made in writing signed by the Declarant or by any person identified in a POS as Declarant’s agent”; a Notice which states: “This POS is only a summary of some of the significant aspects of purchasing a unit in this condominium and the condominium documents are complex, contain other important information and create binding legal obligations. You should consider seeking the assistance of legal counsel”; any other information and cross-references which the Declarant believes will be helpful in describing the condominium to the recipients of the POS, all of which will be included or not included at the option of the Declarant; and any notice that addresses compliance or non-compliance with the Housing for Older Persons Act of 1995.

The POS must be accompanied by the copies of the Declaration, the Survey Map and Plan, the articles of incorporation of the Association, the Bylaws of the Association, any rules and regulations, a current or proposed budget of the association, and the balance sheet of the association current within 90 days of assessments having been collected for 90 days or more.

If the condominium is subject to HB 1848, the Building Enclosure Inspection Report, which lists the repairs needed, must accompany the POS.

b. Is the Declarant Liable for Misstatements in the POS?

The Declarant is liable for any misrepresentation contained in the POS or for any omission of a material fact therefrom if the Declarant had actual knowledge of the misrepresentation or omission, or in the exercise of reasonable care, could have known of the misrepresentation or omission.

c. Does the Purchaser Have A Right to Rescind the Sale Agreement Upon Receipt of the POS?

The Purchaser has an absolute and unconditional right to rescind the sale of the condominium for a period of seven days after the purchaser receives the POS and before conveyance of the unit. If the POS is given to the purchaser within 7 days of closing, the purchaser has a right to extend the closing date in order to have the full 7 day review period.

d. What Is Contained In the RC?

The following information is contained in a RC:

1) A statement disclosing the right of first refusal or other restraint on the free alienability of the unit contained in the Declarations;

2) A statement setting forth the amount of the monthly common expense assessment and any unpaid common expense or special assessment currently due and payable from selling unit owner and a statement of any special assessments that have been levied against the unit which have not been paid even though not yet due;

3) A statement, which shall be current to within 45 days, of any common expenses or special assessments against any unit in the condominium that are past due over 30 days;

4) A statement, which shall be current to within 45 days, of any obligation of the association which is past due over 30 days;

5) A statement of any other fees payable by unit owners;

6) A statement of any anticipated repair or replacement costs in excess of 5% of the annual budget of the association that has been approved by the Board of Directors;

7) A statement of the amount of any reserves for repair or replacement of any portions of those reserves currently designated by the Association for any specified project;

8) The annual financial statement of the Association, including the audit report if any as prepared, for the year immediately preceding the current year;

9) A balance sheet and revenue and expense statement of the Association prepared on an accrual basis, which shall be current within 120 days;

10) The current operating budget of the association;

11) The statement of any unsatisfied judgments against the association;

12) The status of any pending suits in which the Association is a Defendant;

13) A statement describing any insurance coverage provided for the benefit of the unit owners;

b. A statement as to whether there are any alterations or improvements to the unit or to the limited common elements assigned thereto that violate any provision of the Declaration;

c. A statement of the number of units, if any, still owned by the Declarant, whether the Declarant has transferred control of the Association to the unit owners, and the date of such transfer;

d. A statement as to whether there are any violations of the health or building codes with respect to the unit, the limited common elements assigned thereto, or any other portion of the condominium; e. A statement of the remaining term of the lease hold estate affecting the condominium and the provisions governing any extension or renewal thereof; and

f. A copy of the Declaration, the Bylaws, the Rules or Regulations of the Association, and any other information reasonably requested by mortgagees of prospective purchasers of units.

The Association may charge up to $150 for preparation of the RC and is to prepare the RC within ten (10) days after request by the unit owner.

e. Does the Purchaser have a right to rescind the Sale Agreement upon receipt of the RC?

The Purchase and Sale Agreement is voidable by the Purchaser until the RC has been provided and for five (5) days thereafter, or until the conveyance, whichever occurs first.

PRACTICE TIPS: a. When representing the buyer, given the substantial amount of information available from the POS, include a contingency that the Buyer’s obligation to proceed with the transaction is contingent on the Buyer’s review and approval, at the Buyer’s sole discretion, of both the RC and the POS. An appropriate time for review of those documents would be 7 days after receipt. (Note: You will not receive the POS on resale unless you ask for it because it is not required.)

b. If the Seller has been contributing towards a reserve account for work which will not be completed until after closing, should the listing agent negotiate for a credit to the Seller for such contributions to the reserve account? Should a differentiation be made for a reserve account for simply maintenance versus improvements? Arguably, if the reserve account is for maintenance, since that maintenance was a result, in part, of the use by the Seller during his ownership, no credit is due the Seller.

c. When representing the Seller, upon taking a listing, contact the Homeowners’ Association to begin the process of obtaining the RC. This is critical as the Buyer can rescind the transaction, at the Buyer’s discretion, for a period of up to 5 days after receipt of the RC. The Buyer should be given the RC upon mutual acceptance of the Purchase and Sale Agreement so that the 5-day rescission period runs parallel with the inspection contingency.