Question

The buyers just reviewed their Closing Statement and noticed a $4,620 fee for HOA Capital Contributions; Buyer & Buyers Agent said I should have noted in the Sellers Disclosures (Owners were not aware of this fee and asked upon going under contract, any fees we should be aware of?) Buyers & Buyers Agent want the seller to pay the amount or lower the purchase price. Per the Escrow Officer, WFG requests the HOA Financials close to the end of the transaction so the seller does not have to pay the fee multiple times. Buyers Agent. Apparently, per the WFG Manager, this is not the norm but in Clark County WA but there are a couple that navigate like TMG. Property went under contract 12.12.2020. Isn't it the Buyers Agent responsibility during the HOA Review Period to verify? I know that the buyers agent called and spoke to HOA on multiple occasions. We had Home inspection issues with the exterior that the HOA is suppose to maintain but apparently won't unless the board passes a special assessment though the HOA went from $246 (Dec) to $385 in (Jan). The sellers are blaming me for not getting the HOA to disclosue the Capital Contribution Fee though the home owners called the hOA directly and the HOA did not disclose the $ fee to them either.

Answer

Broker should advise her client to seek legal counsel. Neither broker nor the Hotline lawyer can interpret the contract and advise buyer or seller as to their rights in this situation. There are any number of issues that could impact this analysis. The description of these funds as a capital contribution is curious. It is not clear if this property is a condo unit or in a single-family residential HOA or even if it is a co-op. The type of housing unit that it is could be significant. Typically, in a condo complex or a more traditional HOA, a "capital contribution" would be referred to as a special assessment. If the funds owing are actually a "special assessment" then the parties likely addressed the obligation for this payment with the "charges and assessments" provision of the purchase agreement. Moreover, if the funds owing are an assessment, then seller may have had an obligation to disclose the assessment on the Form 17, assuming seller had knowledge of the assessment. However, if the fees are more properly classified as a "transfer fee", then the parties may have addressed payment obligation with Form 22D, paragraph 9, if that provision was made part of the agreement. If the association at issue is a condo association that provided a resale certificate and the resale certificate failed to account for these fees, that is an issue that may need to be pursued. Simply put, there are lots of possible origins, solutions and liabilities associated with this fund that is owing. Neither broker nor the Hotline lawyer are in a position to sort out the facts and assign liability for payment of the funds. It is difficult to see, however, from the facts presented, any basis for assigning liability to the listing broker. From the facts presented, listing broker had no knowledge of and no reason to learn of the financial obligation owing any sooner than any of the other players involved in this analysis.

Date of Posting

1/13/2021

Legal Disclaimer

The Legal Hotline Lawyer does not represent Washington REALTORS® or its members. The advice contained herein does not constitute legal counsel. Please consult with your managing broker for best practices.

Association Name

CLARK COUNTY BOARD OF REALTORS® INC