(i) An affidavit signed and sworn to by the
offeror(s) which states:
(a) The name,
residence and business address and legal status (corporation, partnership,
individual, etc.) of each offeror and its principals, and the relationship of
the offeror(s) to the property which is the subject of the offering.
(b) A description of the property which is to
be cooperatively owned or maintained by the HOA.
(c) A description of the proposed
transaction, including the number of homes or lots being offered in conjunction
with membership in the HOA.
(d)
That the offeror(s) will comply with the escrow and trust fund provisions of
General Business Law section 352-e (2-b) and section 352-h and the regulations
adopted by the Attorney General pursuant thereto, and hold down payments for
the purchase of the property in trust for the benefit of the purchasers and
that such funds will not be commingled with the moneys of the offeror(s) until
actually employed in connection with the consummation of the
transaction.
(e) That the
offeror(s) will provide to each offeree the following information:
(1) a statement that the purchase price of
the home(s) or lot(s) includes the cost of membership in the HOA;
(2) a copy of any mortgage or ground lease
that will remain on HOA property after transfer to the association;
(3) a copy of any contract between the
sponsor and the HOA;
(4) a copy of
the proposed deed of HOA property from sponsor to the HOA;
(5) a copy of the recorded deed to the HOA
property by which sponsor derived title or a copy of the contract of sale
between the owner and sponsor if sponsor is the contract vendee;
(6) a copy of the most recent financial
statement of income and expenses for the operation of the property, if
applicable;
(7) information known
to the offeror(s) which may result in extraordinary expenses for members or for
the HOA including but not limited to, assessments, liabilities, dangerous or
hazardous conditions, pending litigation and administrative
proceedings;
(8) evidence of
compliance with local zoning laws and regulations, e.g.,
construction permits, zoning resolutions, use permits, a certificate of
occupancy if HOA property includes any buildings;
(9) disclosure of escrow account as required
by section
22.3(k)(2) of
this Part including the form for dispute resolution by the Attorney General;
and
(10) such other information as
the Department of Law may require to be presented to each offeree.
(f) That the offeror(s) agrees to
furnish a complete copy of the application for a no-action letter and a copy of
the no-action letter to each offeree prior to accepting any down
payment.
(g) That the offeror(s)
agrees to furnish, within five days after a request by the Department of Law,
copies of executed offeree affidavits required pursuant to clause
(j) of this subparagraph.
(h) That the use for which the unit(s) and
property are being offered will comply with the property's certificate of
occupancy, zoning, building and housing laws, rules and regulations. If the
proposed use will not comply with the legally permissible use, a discussion of
what steps must be taken to comply with or to change the legally permissible
use and identification of which party will assume responsibility for taking
such steps.
(i) Whether the
offeror(s) or its principals, have, within the preceding five years,
participated in any other applications for a no-action letter or have made any
other offerings which were not pursuant to an offering plan filed with the
Department of Law. If so, the address of any property which was the subject of
such application or offering.
(j)
That an affidavit will be obtained from each proposed offeree prior to the
closing on a unit that is subject to this application which will contain the
following representations;
(1) the offeree's
name, residence and business address and legal status (corporation,
partnership, individual, etc.);
(2)
that the offeree has read the affidavit of the offeror(s) submitted as part of
the application for a no-action letter;
(3) that the offeree understands that no
offering literature other than as required by the no-action letter will be
provided;
(4) that the offeree has
inspected the subject property.
(ii) A site plan indicating the property
which is to be commonly owned or maintained by the HOA.
(iii) Declaration of covenants, restrictions,
easements and liens or a road maintenance agreement.
(iv) The estimated monthly or annual
assessment and the current or proposed budget.
(v) Certification by an expert as to the
adequacy of projected income and expenses for the first year of operation or
back-up documentation substantiating each line item of the budget.
(vi) Transmittal letter. A transmittal letter
addressed to the Department of Law that is signed and affirmed under penalty of
perjury by the individual attorney who prepared the no-action application, and
containing the following unqualified statements must be submitted with the
application at the time the application is submitted:
"I am the attorney who prepared the no-action application
for the captioned property. I affirm as follows:
Enclosed for filing pursuant to Section
22.8 of 13 NYCRR Part 22 is an
application for a no-action letter for the captioned property.
I am fully familiar with the provisions of Article 23-A of
the General Business Law and the regulations promulgated by the Attorney
General in Part 22.
I prepared (or reviewed) all legal documents necessary to
form an HOA and, in my opinion, the HOA is duly organized, validly existing and
in good standing. [If the HOA is not in existence at the time the application
is submitted, state that counsel will cause the HOA to be formed in conformity
with applicable law.] I have prepared the application based on information from
the sponsor. I expressly disclaim any responsibility to have made an
independent inspection of the property or investigation of the information
furnished to me by sponsor.
I have no actual knowledge of any violation of Article 23-A
of the General Business Law or Part 22 of the regulations promulgated by the
Department of Law, nor do I have actual knowledge of any material fact omitted
or any untrue statement of a material fact included in the application."
(vii) A check in the amount
required by General Business Law section 352-e(7)(a) made payable to the
Department of Law.
(viii) A
Broker-Dealer Statement (Form M-10) for the offerors accompanied by a check in
the amount required by General Business Law section 359-e(5).
(ix) A statistical record card available from
the Department of Law.
(x) Where
the roads are subject to an offer of dedication to the locality, a copy of the
dedication agreement and documentation establishing that the sponsor has
substantially complied with conditions for dedication.
(xi) Such other documents and information as
the Department of Law may specify.
