Contact: data@mbaks.com

While home prices are falling month-over-month, they are still higher than where they were a year prior. In King County, single-family median home prices are up 12.22% from November 2021, and in Snohomish County they are up 5%.

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A home is more than bricks and sticks. Under the law and project documents summarized below, a complex bundle of rights and obligations are imposed upon the buyer and builder.

Why is disclosure a buyer’s best friend? The best consumer protection the law can provide is ensuring an opportunity to acquire an understanding of the products being purchased. This is difficult to achieve, however, because of the complex bundle of rights and obligations being obtained.¹

A builder wants a buyer to buy—but only what the builder is selling; not what a buyer mistakenly hopes or believes is being sold. To avoid post-closing disputes, a builder needs clear guidance to describe what is being sold (the complex bundle of rights and obligations).

The Washington Condominium Act (WCA, RCW 54.34, for condominiums) and Land Development Act (LDA, RCW 58.19, for subdivisions) require a Public Offering Statement (POS) containing mandatory specific information. The objectives fostered by this approach include: providing guidance for POS contents; promoting clear and concise POS’s; encouraging buyers to read and understand; avoiding irrelevant, ambiguous, and confusing disclosures; avoiding a false sense of security that lengthy POS’s contain all relevant information; promoting uniform POS’s; facilitating project comparison; enabling POS preparation at reasonable cost; facilitating obtaining legal opinions; and decreasing the need for state agency review. The WCA-POS is mandatory. The LDA-POS is often not required because of various exemptions (e.g., lot is improved with, or builder is under contract to build, a house). But, an LDA-POS may be given voluntarily. ^{1, 2}

The WCA/LDA disclosures involve three components: cautions to buyers, topics covered, and documents delivered. To avoid post-closing disputes, WCA/LDA POS’s provide the following cautions: buyer has a cancellation period; buyer may only rely on seller representations and express warranties contained in the POS or a writing signed by seller; buyer may not rely upon agent’s promises; POS is only a summary of some significant aspects of the home; documents are complex, contain other important information and create binding obligations; and buyer should seek legal counsel assistance. ²

The topics covered by the POS include: community name and address; developer and management company name, address and relationship; nature of interest being purchased; permitted and restricted uses; number of homes; principal amenities; limited common areas; land the owners and others may access; construction status; association and owner maintenance; owner's assessments; other dwelling fees; governmental assessments; blanket encumbrances; developer’s rights; model homes; association liens; physical hazards; construction warranties; building code violations; association litigation; association insurance; documents delivered; insulation data; and Form 17 environmental disclosures. ²

The documents delivered with the POS include: public offering statement; declaration; plat/survey map; HOA articles; HOA bylaws; HOA rules; HOA balance sheet; HOA annual budget; and construction warranty. ²

The Form 17 Seller Disclosure Statement (provided for under RCW 64.06) creates problems for sellers— the questions are subjective, subject to multiple interpretations, provide grounds for litigation, and are not well designed for builder project sales. Buyers may waive, and builders need not provide, a Form 17. Builders should give either a WCA or LDA POS in lieu of a Form 17—builders are not avoiding disclosures, but are providing disclosures more appropriate for project sales. However, the builder must provide in the POS the Form 17, Section 7 Environmental Disclosures if any question would be answered YES. ³

A single Disclosure Book, with Acknowledgement Addendum, should be used, and contains: POS and documents; delivered when PSA signed; makes disclosures a part of buyer’s contract; avoids document delivery hassles; assures that buyer gets disclosures; and makes proof of delivery easier.

The builder’s Addendum to the Purchase and Sale Agreement should provide for buyer’s waiver of the Form 17 and acceptance of the builder’s alternative Disclosure Book.

Endnotes: ¹ WCA Comments; ² RCW 64.34.400, 405 & 410 and 58.19.030, 045 & 055; ³ RCW 64.06.

Author: James C. (Pete) Middlebrooks, owner of the Law Office of James C. Middlebrooks, provides comprehensive services to individual, corporate, and institutional clients on residential and commercial real estate development, land use, acquisition, investment, and financing.

423.252.2693  |  pete@jcmiddlebrooks.com

A LEGACY OF BUILDING IN THE PUGET SOUND

Bellevue-based BDR Companies provides investment, development, and home construction in the Puget Sound area. With highly respected backgrounds in the residential development community, BDR executives have been recognized with major industry awards, including national Gold Nugget Awards for building excellence, Builder of the Year (twice), more than 100 industry-wide MAME Awards, and numerous Built Green recognitions.

Todd Bennett is the founder and president of BDR Companies. Prior to that, he was a principal in Bennett Homes for 30 years. In his current role, Todd puts together developer partnerships for BDR’s residential building projects. “Our partnerships mostly build homes. We have two groups: BDR Homes for homes priced under two million and BDR Fine Homes for homes priced over two million.”

MORE THAN 20 YEARS IN THE MBA HEALTH TRUST

Between Bennett Homes and BDR, Todd has been a member of the Master Builders Association of King and Snohomish Counties (MBA) for 34 years (once serving as President) and the MBA Health Trust for 21 years. “MBA’s health insurance is a big benefit for us,” says Todd. “We’ve used the Trust from the beginning. All of our employees are on our plan now. We’ve always been able to provide good coverage for them. And it’s affordable for us.”

SIGNIFICANT COST SAVINGS

The MBA Health Trust has provided Todd and his companies with consistently lower premiums. “We’ve looked at other health insurance providers, but we’ve never been able to get the same combination of cost savings plus benefits,” he says. “The MBA plan has consistently been 10-15 percent less cost, even with the big increases in health insurance premiums since the implementation of the Affordable Care Act.”

REGENCE BLUESHIELD “KEEPS IT SIMPLE”

Regence BlueShield is the MBA Health Trust’s insurance partner, and Todd has had good experiences with them over the years. “The Regence plan is flexible. So far, we haven’t had a hitch at all on who we can use and what’s covered—even with large medical issues. Regence has covered most everything so far and kept it simple.”

MBA MEMBER BENEFITS ALSO INCLUDE BUILDER ADVOCACY

In addition to the MBA Health Trust, Todd’s long membership in the MBA has helped his business in other ways. Todd says the MBA has a very strong government relations group. “A great benefit to MBA membership is the advocacy role the MBA plays,” he says. “We get a common voice in the industry. Local municipalities listen to the MBA. That’s a primary benefit from a builder standpoint. The MBA gives the builders more of a collective voice. It’s very powerful. The MBA has helped get code changes that benefit the home building industry adopted, for example.”

CITIES LISTEN, PROCESSES ARE EXPEDITED

Todd cites challenges with some cities and how the MBA interceded. “We were having slowdowns with building permits and the MBA got involved and arranged a meeting with city officials. This got the process moving forward quicker.”