BILL ANALYSIS                                                                                                                                                                                                    Ó




           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        AB 905|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                      CONSENT 


          Bill No:  AB 905
          Author:   Beth Gaines (R)
          Introduced:2/26/15  
          Vote:     21  

          SENATE JUDICIARY COMMITTEE:  7-0, 6/9/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           ASSEMBLY FLOOR:  77-0, 4/30/15 (Consent) - See last page for  
            vote

           SUBJECT:   Time-shares:  public report:  real property  
                     inspection


          SOURCE:    American Resort Development Association
                     Resort Owner's Coalition


          DIGEST:  This bill modifies the Vacation Ownership and  
          Time-share Act of 2004 to authorize required copies of public  
          reports pertaining to time-share interests and required copies  
          of disclosures pertaining to exchange programs to be provided in  
          a digital format at the discretion of the purchaser.  This bill  
          also exempts licensed real estate brokers or salespersons from  
          the duty to conduct a reasonably competent and diligent visual  
          inspection of a time-share property and to disclose all facts  
          materially affecting the value or desirability of the property  
          to a prospective purchaser when the property has not been  
          previously occupied, and, as a condition of transfer, the  
          prospective purchaser would receive a copy of the public report.









                                                                     AB 905  
                                                                    Page  2




          ANALYSIS:   


          Existing law:


           1) Regulates, in the Vacation Ownership and Time-share Act of  
             2004, the creation and sale of time-share interests in a  
             time-share plan, and the creation and operation of exchange  
             programs that facilitate the voluntary exchange of time-share  
             interests.  (Bus. & Prof. Code Sec. 11210 et seq.)


           2) Provides that any person who, to any individual located in  
             the state, sells, offers to sell, or attempts to solicit  
             prospective purchasers to purchase a time-share interest, or  
             any person who creates a time-share plan with an  
             accommodation in the state, shall register the time-share  
             plan with the Commissioner of Real Estate, unless the  
             time-share plan is otherwise exempt.  (Bus. & Prof. Code Sec.  
             11226 (a).)


           3) Provides that, when registering a time-share plan, the  
             developer of a time-share plan shall provide the Commissioner  
             with, among other things, a public report that complies with  
             the requirements of the Vacation Ownership and Time-share Act  
             of 2004.  (Bus. & Prof. Code Sec. 11226 (c).)


           4) Provides that a developer shall prepare, for issuance by the  
             Commissioner, a public report that shall fully and accurately  
             disclose those facts concerning the time-share developer and  
             time-share plan that are required by the Vacation Ownership  
             and Time-share Act of 2004 or by regulation.  (Bus. & Prof.  
             Code Sec. 11234.)


           5) Provides that the developer shall provide the public report  
             to each purchaser of a time-share interest in a time-share  
             plan at the time of purchase.   Existing law specifies the  








                                                                     AB 905  
                                                                    Page  3



             public report shall be in writing and dated and shall require  
             the purchaser to certify in writing the receipt thereof.   
             Existing law also specifies the information required to be  
             contained within a public report.  (Bus. & Prof. Code Sec.  
             11234.)


           6) Provides that public reports for a single site and those  
             component sites of a specific time-share interest multisite  
             time-share plan that are offered in this state shall include  
             specified information.  (Bus. & Prof. Code Sec. 11234.)


           7) Establishes additional disclosures for public reports for  
             specific time-share interest multisite time-share plans and  
             for nonspecific time-share interest multisite time-share  
             plans.  (Bus. & Prof. Code Sec. 11234.)

           8) Provides that if a developer offers a purchaser the  
             opportunity to subscribe to or to become a member of an  
             exchange program, or if an exchange company offers directly  
             to the purchaser the opportunity to subscribe to or become a  
             member of an exchange company, the developer or exchange  
             company shall provide to the purchaser in writing specified  
             information prior to or concurrently with the execution of a  
             contract or subscription for membership in the exchange  
             program.  (Bus. & Prof. Code Sec. 11216.)

           9) Provides that it is the duty of a real estate broker or  
             salesperson to a prospective purchaser of residential real  
             property, as defined, to conduct a reasonably competent and  
             diligent visual inspection of the property offered for sale  
             and to disclose to that prospective purchaser all facts  
             materially affecting the value or desirability of the  
             property that an investigation would reveal, and to make  
             other specified disclosures about the property and  
             transaction, if that broker has a written contract with the  
             seller to find or obtain a buyer or is a broker who acts in  
             cooperation with that broker to find and obtain a buyer.   
             (Civ. Code Sec. 2079 et seq.)










                                                                     AB 905  
                                                                    Page  4



           10)Specifies that the duty of a real estate broker or  
             salesperson to conduct a reasonably competent and diligent  
             visual inspection of a property does not apply to transfers  
             which are required to be preceded by the furnishing, to a  
             prospective transferee, of a copy of a public report pursuant  
             to Section 11018.1 of the Business and Professions Code and  
             transfers which can be made without a public report pursuant  
             to Section 11010.4 of the Business and Professions Code,  
             unless the property has been previously occupied.  (Civ. Code  
             Sec. 2079.6.)


          This bill:


          1)Authorizes a developer to provide a public report required by  
            the Vacation Ownership and Time-share Act of 2004, as well as  
            any disclosures pertaining to an exchange program, to a  
            purchaser in writing or in a digital format at the discretion  
            of the purchaser.


          2)Provides that the duty of a real estate broker or salesperson  
            to conduct a reasonably competent and diligent visual  
            inspection of a property and to provide specified disclosures  
            about the property and transaction does not apply to transfers  
            which are required to be preceded by the furnishing, to a  
            prospective transferee, of a copy of a public report pursuant  
            to Section 11234 of the Business and Professions Code  
            pertaining to time-share plans, unless the property has been  
            previously occupied.


          Background


          Time-shares, or vacation ownerships, are terms that generally  
          describe a system where owners occupy a property for short  
          periods of time each year while on vacation.  This contrasts  
          with more traditional common interest developments, like  
          condominiums and residential subdivisions, which are usually  
          occupied year-round.  The regulation of timeshares began in  








                                                                     AB 905  
                                                                    Page  5



          earnest in 1981 when the industry was widely perceived as being  
          prone to high-pressure sales tactics and rampant consumer fraud  
          (an era now half-jokingly referred to as the "crime-share"  
          days).  Stringent state regulations for time-shares were built  
          into the Subdivided Lands Law that regulated common interest  
          developments.  Although time-share regulations and references  
          are now found throughout state law, they are now principally  
          found in the Vacation Ownership and Time-share Act of 2004.   
          (Bus. & Prof. Code Sec. 11210 et seq.)

          Under current law, time-shares are regulated by the Bureau of  
          Real Estate (BRE), which has a broad responsibility to ensure  
          that purchasers of regulated time-shares, both in-state and  
          out-of-state, receive everything that they bargained for when  
          purchasing their interest in a time-share plan.  Time-share  
          interests regulated by BRE fall into two basic categories, based  
          on whether participation in the time-share results in the  
          conveyance of an interest in real property.  The first category  
          of regulated time-share interests includes those where a right  
          of occupancy in a time-share property is coupled with a  
          conveyance of an estate in real property, which is typically  
          transferred to the purchaser by grant deed.  The second involves  
          time-share interests based on purchase agreements between  
          sellers and buyers that do not involve the conveyance of an  
          interest in real property.  These purchase agreements take many  
          different forms, such as granting membership in a corporation  
          along with a time-limited license for exclusive use of a  
          particular property.

          BRE's oversight of time-share interests is provided primarily  
          through the creation of a "public report," which must be issued  
          to each purchaser before the sale of an interest in a time-share  
          plan.  The purpose of a public report is "to prevent fraud and  
          misrepresentation in the marketing of parcels of land by  
          requiring disclosure of the financial risks and benefits of a  
          transaction to proposed purchasers and lessees."  (California  
          Coastal Com. v. Quanta Investment Corp. (1980) 113 Cal.App.3d  
          579, 589.)  The Vacation Ownership and Time-share Act of 2004  
          requires the creation of this public report, which encompasses  
          most of the major elements of a time-share purchase (property  
          description, amenities, real estate disclosures, costs and  
          escrow, maintenance fees and assessments, management and local  








                                                                     AB 905  
                                                                    Page  6



          governance, rescission, liability, and a host of other matters).  
           BRE oversees developer compliance with regulations governing  
          the creation of time-shares, as well those related to  
          advertising and sales of time-share interests, but the  
          California Attorney General bears the ultimate responsibility to  
          ensure the law is enforced.

          The Vacation Ownership and Time-share Act of 2004 also governs  
          the creation and sale of interests in "exchange programs," which  
          are contractual arrangements that facilitate voluntary exchange  
          of time-share interests, such as allowing the owner of a  
          time-share interest to trade use of time owned in one time-share  
          plan for use of time at another property.  The Act requires  
          those who offer purchasers the opportunity to subscribe to or  
          become a member of an exchange program to provide specified  
          disclosures about the exchange program, including disclosures  
          about the program's membership and governance.

          This bill, sponsored by the American Resort Development  
          Association, authorizes developers and sellers of time-share  
          interests to provide time-share public reports and disclosures  
          pertaining to exchange programs in a digital format at the  
          discretion of the purchaser.  This bill also relieves licensed  
          real estate brokers and salespersons of the duty to conduct a  
          reasonably competent and diligent visual inspection of a  
          previously unoccupied time-share interest offered for sale, and  
          to disclose to a prospective purchaser all facts materially  
          affecting the value or desirability of the property that an  
          investigation would reveal, when the transfer of the time-share  
          interest would require the seller to provide a public report.


          Comments

          The author states:
          
            Under existing law, purchasers of timeshares must be provided  
            an extensive public report on the development.  Existing law  
            also mandates that purchasers of timeshare exchange program[s]  
            be given detailed information regarding the program . . . In  
            this modern and increasingly paperless world, many consumers  
            would prefer not to get these sometimes bulky disclosures in  








                                                                     AB 905  
                                                                    Page  7



            paper form.  AB 905 allows the disclosures to be made  
            electronically - at the discretion of the purchaser.  It also  
            replaces language that was inadvertently left out of previous  
            timeshare legislation.  In 2004, a rewrite of the timeshare  
            law (AB 2252 - Montanez) deleted the mandated timeshare report  
            from [Business and Professions Code] Section 11018.1 and  
            placed an expanded report requirement in [a] new section --  
            [Business and Professions Code] Section 11234.  However, Civil  
            Code Section 2079.6 was never amended to reflect that change.

          Related/Prior Legislation


          AB 634 (Calderon, 2015) amends the Vacation Ownership and  
          Time-share Act of 2004 to prohibit a time-share owner's  
          association from publishing its list of owners or providing a  
          copy of the list to any time-share interest owner or to any  
          third party, or from using or selling the list for commercial  
          purposes, except to accomplish legitimate association business,  
          as defined.  The bill is pending in the Senate Judiciary  
          Committee.


          AB 2252 (Montanez, Chapter 697,  Statutes of 2004) consolidated  
          and revised the body of time-share vacation property law,  
          streamlined the regulatory approval process of time-share plans,  
          and added new consumer protections and disclosures to create the  
          Vacation Ownership and Time-share Act of 2004.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified6/9/15)


          American Resort Development Association (co-source)
          Resort Owner's Coalition (co-source)


          OPPOSITION:   (Verified6/9/15)








                                                                     AB 905  
                                                                    Page  8





          None received

          ASSEMBLY FLOOR:  77-0, 4/30/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,  
            Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,  
            Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Grove,  
            Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,  
            Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,  
            Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,  
            Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,  
            Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,  
            Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Campos, Chávez, Gomez


          Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
          6/24/15 17:20:54


                                   ****  END  ****