Code Section Group

Civil Code - CIV

DIVISION 3. OBLIGATIONS [1427 - 3272.9]

  ( Heading of Division 3 amended by Stats. 1988, Ch. 160, Sec. 14. )

PART 4. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS [1738 - 3273]

  ( Part 4 enacted 1872. )

TITLE 4. LOAN [1884 - 1923.10]

  ( Title 4 enacted 1872. )

CHAPTER 5. Shared Appreciation Loans [1917.110 - 1917.175]

  ( Chapter 5 repealed and added by Stats. 1982, Ch. 466, Sec. 12. )

ARTICLE 7. Notices and Disclosures [1917.170 - 1917.175]
  ( Article 7 added by Stats. 1982, Ch. 466, Sec. 12. )

1917.170.
  

(a) The disclosures made pursuant to this chapter, as required, shall be the only disclosures required to be made pursuant to state law for shared appreciation loans, notwithstanding any contrary provision applicable to loans not made under this chapter, except those, if any, that may be required by reason of the application of Division 1 (commencing with Section 25000) of the Corporations Code, or Chapter 1 (commencing with Section 11000) of Part 2 of Division 4 of the Business and Professions Code. However, a lender shall not be precluded from supplementing the disclosures required by this chapter with additional disclosures that are not inconsistent with the disclosures required by this chapter.

(b) Whenever specific language is prescribed by this chapter, substantially the same language shall be utilized if possible, but reasonably equivalent language may be used to the extent necessary or appropriate to achieve a clearer or more accurate disclosure.

(Repealed and added by Stats. 1982, Ch. 466, Sec. 12. Inoperative January 1, 1987, by Stats. 1982, Ch. 466, Sec. 12.5.)

1917.171.
  

(a) Each lender offering shared appreciation loans shall furnish to a prospective borrower, on the earlier of the dates on which the lender first provides written information concerning shared appreciation loans from the lender or provides a loan application form to the prospective borrower, a written disclosure as provided in this section.

(b) The disclosure shall be entitled “INFORMATION ABOUT THE (Name of Lender) SHARED APPRECIATION LOAN,” and shall describe the operation and effect of the shared appreciation loan including a brief summary of its terms and conditions, together with a statement consisting of substantially the following language, to the extent applicable to such loan:

INFORMATION ABOUT THE (Name of Lender) SHARED APPRECIATION LOAN


(Name of Lender) is pleased to offer you the opportunity to finance your home through a shared appreciation loan.

Because the shared appreciation loan differs from the usual mortgage loan, the law requires that you have a detailed explanation of the special features of the loan before you apply. Before you sign your particular shared appreciation loan documents, you will receive more information about your particular shared appreciation loan, which you should read and understand before you sign the loan documents.

The loan will bear a stated rate of interest which will be (percent) below the prevailing market interest rate. In exchange for a stated interest rate which is below the prevailing rate, you will be obligated to pay us additional interest later. This additional interest is called “contingent interest.”

The loan will require a balloon payment at the end of the _____ year. Thus, if you do not sell the property before that time, you will need to refinance the loan at that time.

Contingent Interest


This loan provides that you, as borrower, must pay to us, as lender, as contingent interest, (percent) of the net appreciated value of the real property which secures the loan. This contingent interest is due and payable when the property is sold or transferred, when the loan is paid in full, upon any acceleration of the loan upon default, or at the end of the term of the loan, whichever first occurs. The dollar amount of contingent interest, if any, which you will be required to pay cannot be determined at this time. If the property does not appreciate, you will owe us nothing. The contingent interest will not become due if title to the property is transferred on your death to a spouse, or where a transfer results from a decree of dissolution of a marriage and a spouse becomes the sole owner.

Your obligation to pay contingent interest will reduce the amount of the appreciation, if any, that you will realize on the property. This appreciation will not produce a real gain in your equity in the property, unless the appreciation rate exceeds the general inflation rate, but you will be required to pay a portion of the appreciation as contingent interest without regard to whether the appreciation has resulted in a real gain.

When you sell or refinance your home, you normally will receive enough cash to pay the shared appreciation loan balance, accrued interest, prepayment charge (if applicable), contingent interest, and expenses of sale. However, if you sell with only a small downpayment, you may possibly not receive enough cash to pay the contingent interest, and, in that event, it will be necessary for you to provide cash from other funds.

Calculating the Contingent Interest

Contingent interest will be calculated as follows:

FAIR MARKET VALUE OF THE PROPERTY (Sale price or apprasied value.)

–(less)

BORROWER’S COST OF THE PROPERTY (This amount includes certain costs paid by you incident to the purchase.)

–(less)

VALUE OF CAPITAL IMPROVEMENTS MADE BY YOU (Must exceed $2,500 in value. Must also exceed $2,500 in cost unless you perform more than 50% of the value of the labor or work on the improvement.)

_(equals)

NET APPRECIATED VALUE

×(times)

______ PERCENT OWED TO LENDER

_(equals)

TOTAL CONTINGENT INTEREST

Determining Fair Market Value


If you sell your property for cash before maturity of your shared appreciation loan, the gross sale price will be the fair market value of the property, unless appraisals are requested by us and the appraisals average more than the gross sale price. However, at your request, we also will tell you what we consider to be the fair market value of the property. If you sell for cash for a gross sale price that equals or exceeds that amount, the gross sale price will control and appraisals will not be needed.

Fair market value is determined by appraisals in the event of sales involving a consideration other than cash, prepayment of the loan in full, or maturity of the loan.

When appraisals are required, fair market value is determined by averaging two independent appraisals of the property. You may select one of the two appraisers from a list approved by the Federal National Mortgage Association. If appraisals are requested by us, we will provide you with full information on how to select an appraiser.

In lieu of appraisals, we may establish fair market value at an agreed amount if an agreement can be reached between you and us.

Determining Value of Capital Improvements


Capital improvements with a value exceeding $2,500 (but no maintenance or repair costs) may be added to your cost of the property for the purpose of determining the net appreciated value, but only if the procedures set forth in the shared appreciation loan documents are followed. It is important to note that capital improvements completed and claimed in any 12-month period must add more than $2,500 in value to the property and must generally also cost more than $2,500. However, if you have performed at least half the value of the labor or other work involved, then the cost of the improvements will not be considered. The appraised value of the improvements will be the increase in the value of the property resulting from the improvements. You will receive no credit for minor or major repairs or for improvements that are not appraised at more than $2,500, but the lender will acquire a share of any resulting appreciation in the value of the property.

Determining Net Appreciated Value


We are entitled to receive __ percent of the net appreciated value of the property as contingent interest. As shown in the chart above, net appreciated value equals (1) the fair market value of the property at the time of the sale or appraisal, less (2) your cost of the property, less (3) the value of any capital improvements for which you are entitled to credit.

Balloon Payment of Principal


If you do not sell the property before the end of the term of this loan, you will need to refinance this loan at that time. The term of this loan is (duration) years. We [are not obligated to refinance either the unpaid balance of the loan or the contingent interest at that time; you alone will be responsible for obtaining refinancing] [will offer or arrange with another lender to refinance the outstanding obligation, including any contingent interest, at that time]. If you refinance this loan, your monthly payments may increase substantially if the property appreciates significantly or if the interest rate on the refinancing loan is much higher than today’s prevailing rates. In general, the more your property appreciates, the larger will be the amount of the contingent interest that you will have an obligation to pay or refinance.

Your Right to Refinance This Loan


(For loans with a refinancing obligation)

If the property is not sold or transferred prior to the maturity of the loan, we will offer or arrange with another lender to refinance the outstanding obligation of the loan, including any contingent interest. The refinancing will be at the then prevailing interest rate.

The terms of the refinancing loan will be like those of home loans offered at that time by banks or savings and loan associations. If at the time of refinancing, banks or savings and loan associations in this state offer loans of sufficient duration, you are assured that the combined length of your shared appreciation loan and refinancing loan will be at least 30 years. However, if loans of sufficient duration are not then offered by banks or savings and loan associations, you may elect any type and maturity of loan then offered by banks or savings and loan associations.

We will not be permitted to look to the forecast of your income in offering or arranging for your refinancing loan. The interest rate and specific terms of any refinancing loan will be subject to then-prevailing market conditions. The interest rate and monthly payment upon refinancing cannot be determined at this time. They may be either more or less burdensome to you than the currently prevailing rates and terms.

Tax Consequences


(For all loans)

USE OF THE SHARED APPRECIATION LOAN WILL HAVE INCOME TAX OR ESTATE PLANNING CONSEQUENCES WHICH WILL DEPEND UPON YOUR OWN FINANCIAL AND TAX SITUATION. FOR FURTHER INFORMATION, YOU ARE URGED TO CONSULT YOUR OWN ACCOUNTANT, ATTORNEY, OR OTHER FINANCIAL ADVISOR.

THE QUESTIONS YOU SHOULD DISCUSS INCLUDE THE TAX DEDUCTIBILITY OF THE CONTINGENT INTEREST PAYMENT, YOUR RIGHT TO UTILIZE THAT DEDUCTION IN YEARS OTHER THAN THE YEAR IT IS PAID, AND THE EFFECT OF THE LOSS OF TAX BENEFITS BEFORE THAT TIME.

Other Important Information


(Here insert additional description, if necessary, of the operation and effect of the shared appreciation loan.

The foregoing describes our shared appreciation loan, includes a summary of all of its important provisions, and informs you of some of the risks of a shared appreciation loan.

If your loan application is accepted by us, we will provide you with more information about your particular shared appreciation loan, which will include a comparison with conventional mortgages, an illustration of the possible increase in your monthly payments upon refinancing, and other important information.

Before you enter into a shared appreciation loan with us, we recommend that you and your attorney or tax accountant review the loan documents for the full text of all of the terms and conditions which will govern the loan.

(Repealed and added by Stats. 1982, Ch. 466, Sec. 12. Inoperative January 1, 1987, by Stats. 1982, Ch. 466, Sec. 12.5.)

1917.172.
  

(a) Each lender making a shared appreciation loan shall also furnish to the prospective borrower, prior to the consummation of the loan, the disclosures required by Subpart C of Federal Reserve Board Regulation Z (12 CFR Part 226), including 12 CFR Section 226.18(f), to the extent applicable to the transaction.

(b) The disclosure made pursuant to subdivision (a) and Regulation Z shall be based on the fixed interest rate of the shared appreciation loan, and shall include a description of the shared appreciation feature, including (1) the conditions for its imposition, the time at which it would be collected, and the limitations on the lender’s share, as required by the Federal Reserve Board in the information published by the board in 46 Federal Register 20877-78 (April 7, 1981), and (2) the lender’s share of the net appreciated value and the prevailing interest rate as defined in Section 1917.120 of the Civil Code.

(c) The disclosure made pursuant to subdivision (a) and Regulation Z shall be accompanied by (1) one or more transaction-specific examples of the operation and effect of the shared appreciation loan and (2) the following charts comparing the shared appreciation loan and a conventional loan made at the prevailing interest rate, and illustrating the possible increase in the monthly payments, and the possible annual percentage rate of finance charge, on the assumptions therein stated:

Chart 1

CONVENTIONAL MORTGAGE AT ____%

If the same loan balance were financed under a conventional, 30-year, fixed-rate, level-payment mortgage, your monthly payments would be:

Years 1–30

$_______/mo.

Chart 2

IF YOU REFINANCE THIS TRANSACTION AT ___%

If your property appreciates at 10% per year, and if your loan balance (including contingent interest due) at the end of __ years is refinanced at __% (the prevailing market interest rate now), your monthly payments will be:

Years 1–__ _____ Refinancing loan

$_______/mo. _____ $_______/mo.*

*

Refinancing loan, assuming a conventional, 30-year, fixed-rate, level-payment mortgage. Other mortgage instruments, e.g., graduated-payment or shared-appreciation, if available, may result in lower payments.

Chart 3

APR IF PROPERTY APPRECIATES AT 10%

If your property appreciates at 10% per year, the total finance charge on your shared appreciation loan (including contingent interest) will equal $____, and the annual percentage rate of the total finance charge (including contingent interest) will equal ____%.

(d) The disclosures required by subdivision (c) shall be separate from the disclosures required by Regulation Z, and may be presented in the document containing the disclosures required by Regulation Z or in one or more separate documents.

(e) Except to the extent that this section requires disclosure of additional information not required by Regulation Z, compliance with the applicable credit disclosure requirements of Regulation Z shall constitute compliance with the requirements of this section.

(f) The disclosure prescribed in Section 1917.171 shall be physically attached to the disclosures required by this section and Regulation Z at the time the Regulation Z disclosures are furnished to the borrower.

(g) In the event federal law is amended so that this section is inconsistent therewith, the federal law shall prevail as to the disclosures required by this section.

(Repealed and added by Stats. 1982, Ch. 466, Sec. 12. Inoperative January 1, 1987, by Stats. 1982, Ch. 466, Sec. 12.5.)

1917.173.
  

Each lender making a shared appreciation loan shall additionally furnish to the prospective borrower, prior to consummation of the loan, a statement containing the following information:

IMPORTANT INFORMATION ABOUT YOUR SHARED APPRECIATION LOAN


You are being offered a shared appreciation loan. Before you decide to accept this loan, read this statement, which is designed to provide important information you should consider.

1. Prevailing interest rate: __%.

2. Interest rate on this loan: __%.

3. Lender’s share of net appreciated value: __%.

4. Amount of this loan: $__.

5. Amount of the monthly payments: $__.

6. Term of this loan: __ years.

7. Amortization period on which payments are calculated: __ years.

8. Prepayment charge (if any): __.

(Repealed and added by Stats. 1982, Ch. 466, Sec. 12. Inoperative January 1, 1987, by Stats. 1982, Ch. 466, Sec. 12.5.)

1917.174.
  

Each deed of trust and evidence of debt executed in connection with a shared appreciation loan shall contain a statement, printed or written in a size equal to at least 12-point bold type, consisting of substantially the following language: “THIS IS A [DURATION] SHARED APPRECIATION LOAN. THE LENDER'S INTEREST INCLUDES [PERCENT] OF THE NET APPRECIATED VALUE OF THE PROPERTY. A BALLOON PAYMENT OF PRINCIPAL WILL BE REQUIRED. FOR FURTHER INFORMATION, READ THE FLYER ENTITLED " INFORMATION ABOUT THE [NAME OF LENDER] SHARED APPRECIATION LOAN. ”’ The notice required by this section shall be completed to state the terms of the shared appreciation loan and the lender’s share of the net appreciated value.

(Repealed and added by Stats. 1982, Ch. 466, Sec. 12. Inoperative January 1, 1987, by Stats. 1982, Ch. 466, Sec. 12.5.)

1917.175.
  

Where, pursuant to any provision of law, the lender is required to disclose the amount of interest due or to be due under a shared appreciation loan and the amount of contingent deferred interest due or to be due is not known, the lender may disclose that fact and specify in the disclosure the method for calculating contingent deferred interest.

(Repealed and added by Stats. 1982, Ch. 466, Sec. 12. Inoperative January 1, 1987, by Stats. 1982, Ch. 466, Sec. 12.5.)

CIVCivil Code - CIV7