Published Articles By Robert Muir.

Determining which transactions are exempt from the Real Estate Transfer Disclosure Statement (TDS) requirements under California Civil Code §1102 is not always clear. For example, investors sometimes create limited liability companies (“LLC”) to sell residential property or use the LLC as the trustee of a trust, to get around the requirement of giving the buyer a TDS. However, this claimed exemption is doubtful.

Scenario: Seller has lived in the home for 25 years and is now selling. The rear fence fell down seven years ago and the adjoining property owner, who purchased four years ago, may be using a portion of the seller’s land.

California law states that an “elder” is anyone in the state, 65 years of age or older. (California Welfare & Institutions Code § 15610.27.) Financial abuse of an elder, or dependent adult, occurs when a person or entity, does or assists in the following: “takes, secretes, appropriates, obtains or retains, real or personal property of an elder or dependent adult, to a wrongful use, or with intent to defraud, or both.” (Welf. & Inst. Code § 15610.30.) The Code also says that a person or entity who knew or “should have known” that the elder person was being defrauded, and continues with the wrongful transaction, can be liable for elder abuse.

An “All-Inclusive Loan” is one the seller makes to the buyer using an All-Inclusive Deed of Trust (“AITD”) and promissory note that are held by the seller for a portion of the purchase price and the unpaid balance of an existing loan, often with a bank. The primary reason for using an AITD is to allow the buyer and seller to take advantage of the lower interest rate on the existing loan or to help a buyer who cannot obtain outside financing.

To avoid the scrutiny of the Department of Real Estate, real estate licensees should know what areas the DRE tends to investigate and what to do if the DRE makes an inquiry or takes other action.