BILL NUMBER: AB 634 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 18, 2016
AMENDED IN SENATE AUGUST 2, 2016
AMENDED IN ASSEMBLY APRIL 28, 2015
INTRODUCED BY Assembly Member Calderon
FEBRUARY 24, 2015
An act to amend Section 11273 of the Business and
Professions Code, relating to time-shares. Section 881
of the Probate Code, as added by Assembly Bill 691 of the 2015-
16 Regular Session, relating to estates.
LEGISLATIVE COUNSEL'S DIGEST
AB 634, as amended, Calderon. Vacation ownership and
time-shares: owners list. Revised Uniform Fiduciary
Access to Digital Assets Act.
Existing law provides for the disposition of a testator's property
by will. Existing law also provides for the disposition of that
portion of a decedent's estate not disposed of by will. Existing law
provides that the decedent's property, including property devised by
a will, is generally subject to probate administration, except as
specified.
AB 691 of the 2015-16 Regular Session would enact the Revised
Uniform Fiduciary Access to Digital Assets Act, which would authorize
a decedent's personal representative or trustee to access and manage
digital assets and electronic communications, as specified. Among
other provisions, AB 691 would provide that a custodian of digital
assets, and its officers, employees, and agents, are immune from
liability for an act or omission done in good faith and in compliance
with the act.
This bill would specify that this immunity does not apply in a
case of gross negligence or willful or wanton misconduct. The bill
would become operative only if AB 691 is enacted prior to the
enactment of this bill.
The Vacation Ownership and Time-share Act of 2004 requires all
records of a time-share plan maintained by a time-share association
to be made available for inspection and copying by any member for a
purpose reasonably related to membership in the association. Existing
law requires the time-share association to maintain among its
records a complete list of the names and addresses of all owners of
time-share interests in the time-share plan, as specified. Existing
law prohibits an association from publishing the owners list or
providing a copy of it to any time-share interest owner or to any 3rd
party or using or selling the list for commercial purposes, except
as provided in the time-share instruments.
This bill would require the owner addresses in the list to be
mailing addresses, and would prohibit the association from publishing
the list or providing a copy of it to any 3rd party or using or
selling the list for commercial purposes. The bill would require the
association to provide a copy of the list to an owner for a purpose
reasonably related to membership in the association, except as
specified. The bill would require, if a time-share interest owner
makes a request to communicate by mail with the membership of the
association for a purpose reasonably related to membership in the
association, the communication to be made within 30 days of receipt
of the request and payment of actual costs in performing the mailing.
The bill would require, if the purpose is not reasonably related,
the board of administration of the association or the managing entity
to notify the requesting owner of the rejection. The bill would
authorize a court to summarily order the distribution of the
requested communication if it is not distributed within 30 days after
receipt of a request from an owner and payment of actual costs. The
bill would also specify that certain provisions of the Nonprofit
Mutual Benefit Corporation Law pertaining to the list of names,
addresses, and voting rights of members of a nonprofit mutual benefit
corporation do not apply to time-share associations under the
Vacation Ownership and Time-share Act of 2004.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 881 of the Probate
Code , as added by Assembly Bill 691 of the 2015-16
Regular Session, is amended to read :
881. (a) Not later than 60 days after receipt of the information
required under Section Sections 876 to Section 879, inclusive, a
custodian shall comply with a request under this part from a
fiduciary or designated recipient to disclose digital assets or
terminate an account. If the custodian fails to comply with a
request, the fiduciary or designated recipient may apply to the court
for an order directing compliance.
(b) An order under subdivision (a) directing compliance shall
contain a finding that compliance is not in violation of Section 2702
of Title 18 of the United States Code.
(c) A custodian may notify a user that a request for disclosure of
digital assets or to terminate an account was made pursuant to this
part.
(d) A custodian may deny a request under this part from a
fiduciary or designated recipient for disclosure of digital assets or
to terminate an account if the custodian is aware of any lawful
access to the account following the date of death of the user.
(e) This part does not limit a custodian's ability to obtain or to
require a fiduciary or designated recipient requesting disclosure or
account termination under this part to obtain a court order that
makes all of the following findings:
(1) The account belongs to the decedent, principal, or trustee.
(2) There is sufficient consent from the decedent, principal, or
settlor to support the requested disclosure.
(3) Any specific factual finding required by any other applicable
law in effect at that time, including, but not limited to, a finding
that disclosure is not in violation of Section 2702 of Title 18 of
the Untied United States Code.
(f) (1) A custodian and its officers,
employees, and agents are immune from liability for an act or
omission done in good faith in compliance with this part.
(2) The protections specified in paragraph (1) shall not apply in
a case of gross negligence or willful or wanton misconduct of the
custodian or its officers, employees, or agents under this part.
SEC. 2. This act shall become operative only if
Assembly Bill 691 is also enacted and this act is enacted after
Assembly Bill 691.
SECTION 1. The Legislature hereby finds and
declares all of the following:
(a) In 2010, the court of appeal held that time-share association
membership lists containing personal information may be distributed
over the objection of many time-share owners.
(b) Time-share associations frequently have membership lists in
excess of 10,000 members.
(c) Membership lists on the open market are of substantial value,
particularly to unscrupulous parties that prey upon time-share
owners.
(d) Legislation is needed to protect the privacy of time-share
owners.
SEC. 2. Section 11273 of the Business and
Professions Code is amended to read:
11273. (a) Except as provided in subdivision (e), the books of
account, minutes of members and governing body meetings, and all
other records of the time-share plan maintained by the association or
the managing entity shall be made available for inspection and
copying by any member, or by his or her duly appointed
representative, at any reasonable time for a purpose reasonably
related to membership in the association.
(b) The records shall be made available for inspection at the
office where the records are maintained. Upon receipt of an
authenticated written request from a member along with the fee
prescribed by the governing body to defray the costs of reproduction,
the managing entity or other custodian of records of the association
or the time-share plan shall prepare and transmit to the member a
copy of any and all records requested.
(c) The governing body shall establish reasonable rules with
respect to all of the following:
(1) Notice to be given to the managing entity or other custodian
of the records by the member desiring to make the inspection or to
obtain copies.
(2) Hours and days of the week when a personal inspection of the
records may be made.
(3) Payment of the cost of reproducing copies of records requested
by a member.
(d) Every governing body member shall have the absolute right at
any time to inspect all books, records, and documents of the
association and all real and personal properties owned and controlled
by the association.
(e) (1) The association shall maintain among its records a
complete list of the names and mailing addresses of all owners of
time-share interests in the time-share plan. The association shall
update this list no less frequently than every six months. The
association shall not publish this list or provide a copy of it to
any third party, or use or sell the list for commercial purposes. The
association shall provide a copy of the list to a member for a
purpose reasonably related to membership in the association. However,
notwithstanding this requirement, if the association reasonably
believes that the recipient of the list will use the list for another
purpose or provide a copy or disclose the contents to another party,
the association shall refuse to provide the member a copy of the
list.
(2) (A) If an owner of a time-share interest in the time-share
plan makes a request to the association to communicate by mail with
the membership of the association for a purpose reasonably related to
membership in the association, and the board of administration of
the association or the managing entity determines that the mailing
pertains to a purpose reasonably related to membership in the
association, the requested mailing shall be made within 30 days after
receipt of a request and payment by the owner of actual costs in
accordance with subparagraph (B). If the board or managing entity
determines that the requested mailing does not pertain to a purpose
reasonably related to membership in the association, the board or the
managing entity shall, within 30 days after receipt of the request,
notify the requesting owner in writing and shall indicate the reasons
for the rejection.
(B) The owner who requests the mailing shall pay the association
in advance for the association's actual costs in performing the
mailing. The association shall make a good faith effort to minimize
the costs of the mailing, including the use of a less expensive
delivery method, including electronic delivery.
(C) If the board of administration or managing entity does not
distribute the requested communication within 30 days after receipt
of a request from an owner and payment of actual costs, the superior
court in the county where the time-share plan is located may, upon
application from the requesting owner, summarily order the
distribution of the requested communication. To the extent possible,
the superior court shall dispose of an application on an expedited
basis. In the event the court orders the distribution of the
requested communication, it may order the board or managing entity to
pay the owner's costs, including attorney's fees reasonably incurred
to enforce the owner's rights, unless the board or the managing
entity can prove it refused to distribute the communication in good
faith because of a reasonable belief that the requested communication
did not pertain to a purpose reasonably related to membership in the
association.
(D) It is unlawful for the board of administration of the
association or managing entity to refuse to distribute a
communication requested by an owner if the requested communication
would address a purpose reasonably related to membership in the
association.
(3) Section 8330 of the Corporations Code shall not apply to
time-share associations under this chapter.
(f) For single site time-share plans and component sites of a
multisite time-share plan located outside of the state, the
association shall be subject to the provisions set forth in this
section. The association must be in compliance with the applicable
laws of the state or jurisdiction in which the time-share property or
component site is located, and if a conflict exists between laws of
the situs state and the requirements set forth in this section, the
law of the situs state shall control. If the association and the
time-share instruments provide for the matters contained in this
section, the association shall be deemed to be in compliance with the
requirements of this section and neither the developer nor the
association shall be required to make revisions to the time-share
instruments in order to comply with the section.