SENATE BILL 320
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Peter Wirth
AN ACT
RELATING TO REAL ESTATE; ENACTING THE REAL ESTATE INSTALLMENT CONTRACT ACT; REQUIRING DISCLOSURE OF LIENS AND ENCUMBRANCES, PROPERTY CONDITION, TAX PAYMENTS, INSURANCE COVERAGE AND FINANCE TERMS; PROVIDING FOR REAL ESTATE INSTALLMENT CONTRACT REQUIREMENTS AND PROHIBITED PROVISIONS; PROVIDING FOR A PURCHASER'S RIGHT TO CANCEL; PROVIDING FOR A SELLER'S REMEDIES UPON DEFAULT; PROVIDING FOR A PURCHASER'S RIGHT TO CURE DEFAULT; PROVIDING FOR NOTICE OF A SELLER'S REMEDIES UPON DEFAULT; PROHIBITING A WAIVER OF ANY OF THE PROVISIONS OF THE REAL ESTATE INSTALLMENT CONTRACT ACT; REQUIRING RETROACTIVE APPLICABILITY; PROVIDING FOR CIVIL LIABILITY AND PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Real Estate Installment Contract Act".
SECTION 2. DEFINITIONS.--As used in the Real Estate Installment Contract Act:
A. "accelerate the contract" means requiring a purchaser to repay all or part of an outstanding loan under a real estate installment contract upon the purchaser's default;
B. "credit-bid" means a bid made by or on behalf of a seller at a foreclosure sale;
C. "cure the default" means to perform the obligations under a real estate installment contract described in a notice of default necessary to reinstate the contract;
D. "default" means the failure to perform any obligation or duty set forth in a real estate installment contract;
E. "forfeiture" means the termination of all of a purchaser's rights, title and interest in property that is the subject of a real estate installment contract due to a default by the purchaser;
F. "immediate family member" means a husband, wife, father, stepfather, mother, stepmother, brother, stepbrother, sister, stepsister, son, stepson, daughter, stepdaughter, grandson, stepgrandson, granddaughter, stepgranddaughter, nephew and niece, whether related by natural birth or adoption;
G. "option fee" means an amount paid by a purchaser to a seller for the option to cancel a real estate installment contract;
H. "purchaser" means a person, or any legal successor in interest to that person, that purchases an interest in property under a real estate installment contract;
I. "real estate installment contract" means a contract for conveyance of residential real property, a contract for deed, a contract to convey, an agreement for sale or any similar contract, including a lease-purchase or rent-to-own contract, through which a seller has conveyed to a purchaser equitable title in property and under which the seller is obligated to convey to the purchaser fee simple interest in the subject property upon payment in full of the contract. A "real estate installment contract" does not include a loan secured by a mortgage or deed of trust;
J. "rescission" means a cancellation of a real estate installment contract upon default of an obligation under the real estate installment contract and the restoration of the seller and purchaser to the same position they held before entering into the contract;
K. "residential real property" means real estate designed and suited or intended for use and occupancy by one to four families, including use and occupancy of manufactured housing;
L. "seller" means a person, or any legal successor in interest to that person, that makes a sale of property by means of a real estate installment contract;
M. "services and utilities" means access to utilities and water, sewer, gas and fire protection services; and
N. "subject property" means the property described in a real estate installment contract.
SECTION 3. DISCLOSURES--PROPERTY CONDITION--TAX PAYMENTS--INSURANCE COVERAGE--CONTRACT TERMS.--No less than seven calendar days prior to the execution of a real estate installment contract, a seller shall:
A. provide the purchaser with the following items:
(1) a survey or plat of a survey of the subject property that accurately reflects the status of the subject property;
(2) a written statement, executed by the seller and purchaser and attached to the real estate installment contract, that includes:
(a) a list describing whether, to the best of the seller's knowledge, the following services are available on the subject property: 1) electric service and an easement for electric service; 2) potable water service and an easement for potable water service; 3) gas service and an easement for gas service; 4) a wastewater or sewer system and an easement for a wastewater or sewer system; 5) a septic system and an easement for a septic system or, if a septic system is needed, the appropriate approval for installation of a septic system; and 6) paved roads to the property boundary, the names of the entities responsible for maintenance of the paved roads and easements for the paved roads; and
(b) a statement that the list in Subparagraph (a) of this paragraph will better inform the purchaser of the condition of the property;
(3) the most recent notice of valuation from the county assessor for the subject property; and
(4) a legible copy of any insurance policy, binder or other evidence of coverage relating to the subject property that indicates:
(a) the name of the insurer and insured;
(b) a description of the insured property; and
(c) the amount for which the property is insured;
B. provide a written statement to the purchaser that:
(1) the seller is not responsible for providing services and utilities not in place on the subject property at the time of sale unless the seller and purchaser have negotiated otherwise; provided that the subject property has been legally subdivided in accordance with the New Mexico Subdivision Act;
(2) permits may be required before services and utilities or improvements to services and utilities can be installed; and
(3) the process for obtaining permits for services and utilities from the appropriate government agencies can be complex and may be negatively affected by the absence of required easements; and
C. provide the purchaser with a copy of the completed real estate installment contract.
SECTION 4. REAL ESTATE INSTALLMENT CONTRACTS--REQUIREMENTS.--
A. A purchaser shall acquire an interest in the subject property in proportion to the amount of principal that has been paid upon the payment of twenty percent of the principal or the equivalent of sixty monthly payments, whichever occurs first.
B. A real estate installment contract shall be in writing, dated, signed by the seller and the purchaser and completed as to all essential provisions.
C. The typed portion of the real estate installment contract, other than instructions for completion, shall be in a size equal to at least ten-point type. The contract shall be designated "real estate installment contract" and shall contain substantially the following notice typed in at least fourteen-point bold font:
"NOTICE TO THE PURCHASER. YOU ARE ENTITLED TO THE PROTECTIONS OF THE REAL ESTATE INSTALLMENT CONTRACT ACT. DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS BLANK SPACES. YOU ARE ENTITLED TO A COPY OF THE CONTRACT YOU SIGN.".
D. The real estate installment contract shall contain the names and addresses of the seller and the purchaser.
E. The real estate installment contract shall contain the following items:
(1) a legal description of the subject property;
(2) the purchase price of the subject property;
(3) the amount of the purchaser's down payment, if any;
(4) the interest rate charged under the real estate installment contract or, if the interest rate is variable, the minimum variable interest rate to be charged along with a statement that the actual variable interest rate charged could be higher;
(5) the total amount of principal and interest to be paid under the real estate installment contract, or if the interest rate is variable, the total amount of principal and the minimum amount of interest to be paid under the real estate installment contract with a statement that the actual total amount may be higher;
(6) the late charge amount, if any, that may be assessed under the real estate installment contract;
(7) the remedies available to the seller upon a purchaser's default; and
(8) a statement that the purchaser shall not be penalized or charged any fee for paying either the entire amount due or any other payment in addition to the monthly payment as provided in the real estate installment contract.
F. The real estate installment contract shall contain a notice in immediate proximity to the space reserved for the purchaser's signature advising the purchaser of the purchaser's right to cancel the real estate installment contract pursuant to Section 9 of the Real Estate Installment Contract Act. The notice shall contain the following information typed in at least fourteen-point bold font:
"YOU HAVE THE RIGHT TO CANCEL THIS CONTRACT FOR ANY REASON BY _________. THE ATTACHED NOTICE OF CANCELLATION FORM FURTHER EXPLAINS YOUR RIGHT TO CANCEL THIS CONTRACT.".
SECTION 5. FOREIGN LANGUAGE REQUIREMENT--PURCHASER'S RIGHT TO COPIES OF DOCUMENTS.--
A. The seller shall provide the purchaser with copies of the following documents in English or Spanish, at the option of the purchaser:
(1) the real estate installment contract;
(2) a notice of cancellation form;
(3) accounting statements; and
(4) notices of default.
B. The seller shall provide all other written documents in English.
SECTION 6. REAL ESTATE INSTALLMENT CONTRACTS--PROHIBITED PROVISIONS.--No real estate installment contract shall contain a provision that:
A. imposes a late payment fee that exceeds eight percent of the amount of the payment past due;
B. imposes an interest rate that is in excess of five percentage points above the prime rate as published by the western print edition of The Wall Street Journal within seven days of the date that the real estate installment contract is executed;
C. prohibits a purchaser from pledging the purchaser's interest in the subject property as security to obtain a loan to place improvements on the subject property, including improvements to services and utilities; provided that the purchaser has paid at least twenty percent of the principal amount or the equivalent of sixty monthly payments;
D. imposes a prepayment penalty or similar fee for paying the entire amount due before the final scheduled payment date as provided in the real estate installment contract or any other payment in addition to the monthly payment as provided in the real estate installment contract; or
E. forfeits an option fee or other option payment as a result of a late payment.
SECTION 7. PURCHASER MAY REFINANCE.--A purchaser may refinance a loan for residential real property subject to a real estate installment contract with a lender of the purchaser's choice, and the seller shall cooperate by taking, in a timely manner, all action necessary to complete the refinance transaction, including providing all necessary documents related to the subject property.
SECTION 8. RECORDING--TITLE TRANSFER.--
A. Within thirty days of execution of a real estate installment contract, the seller shall record in the appropriate county clerk's office:
(1) the original real estate installment contract, executed by the seller and the purchaser; or
(2) a notice of interest in the subject property or other memorandum of the real estate installment contract that identifies the names of the seller and the purchaser and a legal description of the subject property.
B. Upon cancellation of a real estate installment contract, the seller shall record the notice of cancellation.
C. The seller shall pay all recording fees unless the purchaser agrees otherwise.
D. A county clerk shall record a real estate installment contract even if an approved plat of a subdivision has not been recorded. This recording shall not be construed to limit a seller's liability under the New Mexico Subdivision Act.
E. A seller shall transfer to a purchaser who complies with all of the purchaser's obligations in the real estate installment contract the recorded and legal title of the subject property no later than thirty calendar days after fulfillment of the real estate installment contract.
SECTION 9. PURCHASER'S RIGHT TO CANCEL WITHIN FOURTEEN CALENDAR DAYS OF THE EXECUTION OF A REAL ESTATE INSTALLMENT CONTRACT.--
A. A purchaser may cancel a real estate installment contract for any reason within fourteen calendar days of execution of the real estate installment contract by sending by certified mail, return receipt requested, or by delivering in person to the seller, a signed, written notice of cancellation as described in Subsection B of this section.
B. The seller shall provide to the purchaser at the time of execution of the real estate installment contract a notice of cancellation form. The notice of cancellation form shall be designated "Notice of Cancellation" in at least fourteen-point bold font. The notice shall contain the following information, typed in at least ten-point font:
(1) the date of the execution of the real estate installment contract;
(2) the date by which the purchaser may cancel the real estate installment contract;
(3) a statement that the purchaser will not be penalized if the purchaser cancels a real estate installment contract;
(4) a statement that the purchaser must provide a completed, signed and dated notice of cancellation form to the seller by certified mail, return receipt requested, or by delivering the completed, signed and dated notice of cancellation form in person to the seller;
(5) the name and address to whom the notice of cancellation shall be delivered; and
(6) a statement that no more than ten calendar days after the seller receives the notice of cancellation from the purchaser, the seller shall return the canceled real estate installment contract and any consideration and tax payments made by the purchaser to the seller and cancel any security interest arising out of the real estate installment contract.
C. No later than ten calendar days after receipt of notice of cancellation from the purchaser, the seller shall:
(1) return the canceled real estate installment contract and any consideration made to the seller and any payments made to a taxing authority for the subject property made by the purchaser on the subject property; and
(2) cancel any security interest arising out of the real estate installment contract.
SECTION 10. PURCHASER'S RIGHT TO CANCEL--IMPROPER PLATTING OR SUBDIVISION.--
A. A purchaser may cancel a real estate installment contract within one year of the date on which a purchaser learns that a seller has not properly platted or subdivided the property described in the real estate installment contract according to law. A purchaser who exercises the right to cancel a real estate installment contract pursuant to this section shall send by certified mail, return receipt requested, or by delivering in person to the seller, a completed, dated and signed notice of cancellation pursuant to Subsection B of Section 9 of the Real Estate Installment Contract Act.
B. No later than ten calendar days after receipt of cancellation from the purchaser, the seller shall send by certified mail, return receipt requested, or by delivering in person to the purchaser, a signed and dated written notice of intent to plat or subdivide the subject property within one calendar year after the date the seller receives the purchaser's notice of cancellation.
C. A seller shall have one calendar year after receiving a purchaser's notice of cancellation to properly plat or subdivide the subject property. Within ninety days of receiving a purchaser's notice of cancellation, the seller shall provide the purchaser with evidence of a good faith effort to properly plat or subdivide the subject property.
After one calendar year, if the subject property is not properly platted or subdivided, the seller shall return to the purchaser:
(1) the amount of principal that the purchaser has paid toward the loan on the subject property to a purchaser that has paid at least twenty percent of the principal or the equivalent of sixty monthly payments;
(2) all payments made by the purchaser in excess of the fair rental value of the subject property to a purchaser that has paid less than twenty percent of the principal and has paid less than the equivalent of sixty monthly payments. The fair rental value of the subject property shall be determined by a New Mexico certified appraiser. Any fees incurred for an appraisal of the improvements shall be paid by the seller;
(3) any payments that the purchaser made to a taxing authority for the property;
(4) the reasonable value of any improvements made to the subject property by the purchaser. The reasonable value of improvements shall be determined by a New Mexico certified appraiser. Any fees incurred for an appraisal of the improvements shall be paid by the seller; and
(5) costs of any action and reasonable attorney fees related to the recovery of payments and reimbursements described in this subsection.
D. The seller shall not terminate a purchaser's possession of the subject property before the purchaser receives all payments and reimbursements pursuant to Subsection C of this section.
SECTION 11. LIENS AND ENCUMBRANCES--DISCLOSURE--NOTIFICATION--PURCHASER'S RIGHT TO CANCEL.--
A. A seller:
(1) shall, at the time of sale, disclose to a purchaser any lien or other encumbrance, including a judgment lien, placed on the subject property of which the seller is aware;
(2) shall not place a lien or encumbrance on the subject property after execution of a real estate installment contract except where:
(a) the purchaser provides consent in writing of placement of a lien or encumbrance; and
(b) the lien or encumbrance is for the purpose of providing services and utilities or otherwise improving the subject property; and
(3) shall notify a purchaser of any legal action taken in connection with a lien or encumbrance placed on the subject property within sixty days of receipt of notice of the legal action.
B. A purchaser may cancel a real estate installment contract within one year of the date on which a purchaser learns that a seller has violated the provisions of Subsection A of this section. A purchaser who exercises the right to cancel a real estate installment contract pursuant to this section shall send by certified mail, return receipt requested, or by delivering in person to the seller, a completed, dated and signed notice of cancellation pursuant to Subsection B of Section 9 of the Real Estate Installment Contract Act.
C. No later than ten calendar days after receipt of cancellation from the purchaser, the seller shall send by certified mail, return receipt requested, or by delivering in person to the purchaser, a signed and dated written notice of intent to make a full satisfaction of the debt secured by the lien or encumbrance within sixty calendar days after the date the seller receives the purchaser's notice of cancellation.
D. A seller shall have sixty days after receiving a purchaser's notice of cancellation to make a full satisfaction of the debt secured by the lien or encumbrance. After sixty calendar days, if the seller has not made a full satisfaction of the debt, the seller shall return to a purchaser:
(1) the amount of principal that the purchaser has paid toward the loan on the subject property to a purchaser that has paid at least twenty percent of the principal or the equivalent of sixty monthly payments;
(2) all payments made by the purchaser in excess of the fair rental value of the subject property to a purchaser that has paid less than twenty percent of the principal and has paid less than the equivalent of sixty monthly payments. The fair rental value of the subject property shall be determined by a New Mexico certified appraiser. Any fees incurred for an appraisal of the improvements shall be paid by the seller;
(3) any payments that the purchaser made to a taxing authority for the property;
(4) the reasonable value of any improvements made to the subject property by the purchaser. The reasonable value of improvements shall be determined by a New Mexico certified appraiser. Any fees incurred for an appraisal of the improvements shall be paid by the seller; and
(5) costs of any action and reasonable attorney fees related to the recovery of payments and reimbursements described in this subsection.
E. The seller shall not terminate a purchaser's possession of the subject property before the purchaser receives all payments and reimbursements pursuant to Subsection D of this section.
SECTION 12. ACCOUNTING STATEMENT.--A seller shall send by certified mail, return receipt requested, or deliver in person to a purchaser, by January 31 of each year for the term of the real estate installment contract, and within fourteen calendar days upon written request from a purchaser, an accounting statement that includes:
A. the amount that the purchaser has paid as of the date of the accounting statement toward satisfying the real estate installment contract, itemized into the total amount of principal paid and the total amount of interest paid;
B. the balance due under the real estate installment contract;
C. the estimated number of payments remaining under the real estate installment contract;
D. the amount paid to a taxing authority on the purchaser's behalf;
E. an accounting of any insurance proceeds the seller has received and has applied to the subject property;
F. a legible copy of all insurance binders or other evidence of coverage insuring the subject property;
G. disclosure of any liens or encumbrances on the property of which the seller is aware; and
H. a notification that the purchaser can pay the entire amount due before the final scheduled payment date, as provided in the real estate installment contract, without penalty.
SECTION 13. DISPOSITION OF INSURANCE PROCEEDS.--
A. The named insured under an insurance policy, binder or other coverage relating to the subject property shall inform the insurer within ten calendar days after the coverage is obtained or a real estate installment contract is executed, whichever is later:
(1) that the subject property has been conveyed under a real estate installment contract; and
(2) of the names and addresses of all parties to the real estate installment contract.
B. An insurer that disburses proceeds under an insurance policy, binder or other coverage for damage to the subject property shall issue proceeds jointly to the seller and the purchaser.
C. Any insurance proceeds shall be used to repair or remedy the damage for which the proceeds were issued.
SECTION 14. SELLER'S REMEDIES ON DEFAULT--PURCHASER'S RIGHT TO CURE THE DEFAULT.--
A. Upon a purchaser defaulting on a real estate installment contract after paying more than twenty percent of the principal or the equivalent of sixty monthly payments, and after the purchaser is given an opportunity to cure the default pursuant to Subsection E of this section, the seller may:
(1) sell the subject property through a judicial foreclosure pursuant to Chapter 39, Article 5 NMSA 1978; or
(2) refinance a real estate installment contract with the purchaser for the subject property; provided that the principal on the new loan shall not exceed the principal due at the time of default on the original loan by more than double the amount defaulted upon.
B. A seller that chooses to sell the subject property pursuant to Subsection A of this section shall allow the purchaser to choose:
(1) to be compensated for the reasonable value of any improvements made by the purchaser to the subject property. The reasonable value of the improvements shall be determined by a New Mexico certified appraiser. Any fees incurred for an appraisal of the improvements shall be paid by the purchaser; or
(2) to limit the seller's recovery from the sale of the subject property to the amount due on the contract, with any excess money paid to the purchaser.
C. The seller may purchase the subject property subject to a credit-bid.
D. If a purchaser defaults on a real estate installment contract after the purchaser has paid less than twenty percent of the principal and has paid less than the equivalent of sixty monthly payments, and after the purchaser has been given an opportunity to cure the default pursuant to Subsection E of this section, the seller may accelerate the contract and enforce the remedies of rescission or forfeiture; provided that the seller:
(1) permits the purchaser a reasonable opportunity to remove any improvements made by the purchaser to the subject property; or
(2) compensates the purchaser for the reasonable value of any improvements made by the purchaser to the subject property. The reasonable value of the improvements shall be determined by a New Mexico certified appraiser. Any fees incurred for an appraisal of the improvements shall be paid by the purchaser.
E. A purchaser in default under a real estate installment contract may cure the default and avoid enforcement of a seller's remedies on default described in this section by complying with the terms of the contract within sixty calendar days after receiving a notice of default from the seller.
SECTION 15. NOTICE OF SELLER'S REMEDIES UPON DEFAULT--METHOD OF DELIVERY--CONTENT.--
A. Notice to a purchaser of a seller's remedies on default shall be effective only when the notice is:
(1) delivered in person to the purchaser or a responsible agent of the purchaser; or
(2) sent by certified mail, return receipt requested and posted on an exterior door of the dwelling unit, or if there is no dwelling unit, posted conspicuously elsewhere on the subject property.
B. A notice shall be designated "Notice of Default" in at least fourteen-point bold type and uppercase typewritten font and shall include the following information, typewritten in at least ten-point font:
(1) a statement that the purchaser has failed to comply with the terms of the real estate installment contract;
(2) the term or terms to which the purchaser has failed to comply;
(3) the delinquent amount, if any, itemized into principal and interest and the time period to which the delinquency applies;
(4) a description of any other additional charges, if any, such as late fees or attorney fees, and the time period to which the additional charges apply;
(5) a description of the specific action that the purchaser must perform to come into compliance with the real estate installment contract;
(6) the date by which the act of compliance must be taken; and
(7) the remedies that the seller may enforce pursuant to the Real Estate Installment Contract Act.
SECTION 16. ADVERTISEMENTS FOR PROPERTY FOR SALE UNDER REAL ESTATE INSTALLMENT CONTRACTS--REQUIREMENTS.--An advertisement for the sale of real property where the method of conveyance is intended to be a real estate installment contract shall disclose information regarding the availability of services and utilities.
SECTION 17. WAIVER.--Any waiver of the provisions of the Real Estate Installment Contract Act shall be unenforceable and void.
SECTION 18. REAL ESTATE INSTALLMENT CONTRACT IS AN EXTENSION OF CREDIT.--A real estate installment contract is an extension of credit pursuant to the Unfair Practices Act.
SECTION 19. PROVISIONS APPLICABLE TO OUTSTANDING REAL ESTATE INSTALLMENT CONTRACTS.--
A. For the purposes of this section, "outstanding real estate installment contract" includes real estate installment contracts executed prior to July 1, 2011 in which the obligations of the seller or the purchaser have not been completed.
B. A seller shall, within thirty days of a request of a purchaser with an outstanding real estate installment contract, provide a copy of the real estate installment contract to the purchaser, executed by the seller and the purchaser.
C. Within ninety days of July 1, 2011, a seller shall record all documents related to an outstanding real estate installment contract pursuant to Subsection A of Section 8 of the Real Estate Installment Contract Act and provide copies of the recorded documents to the purchaser within thirty days of the recording.
D. A seller shall, at the request of a purchaser with an outstanding real estate installment contract, provide annual accounting statements due on and after January 1, 2012 and notices of default delivered after July 1, 2011 in Spanish.
E. Beginning on January 1, 2012, a seller shall provide accounting statements to a purchaser with an outstanding real estate installment contract pursuant to Section 12 of the Real Estate Installment Contract Act.
SECTION 20. PERSONS TO WHOM PROVISIONS OF ACT NOT APPLICABLE.--
A. A purchaser that conveys any portion of a subject property to an immediate family member shall be exempt from all provisions of the Real Estate Installment Contract Act with the exception of the provisions of Section 8 of that act.
B. A seller that conveys a subject property with a purchase price above two hundred thousand dollars ($200,000) shall be exempt from all provisions of the Real Estate Installment Contract Act with the exception of the provisions of Section 8 of that act.
SECTION 21. VIOLATIONS--CIVIL LIABILITY AND PENALTIES.--
A. If a seller violates Section 3, 4 or 5 or Subsection D of Section 19 of the Real Estate Installment Contract Act, the purchaser, the attorney general or a district attorney may bring an action within four years of the violation and recover the actual costs incurred by the purchaser as a result of the violation or one thousand dollars ($1,000), whichever is greater.
B. If a seller violates Subsection A of Section 8 or Subsection B or C of Section 19 of the Real Estate Installment Contract Act, the purchaser may bring an action within one year of the violation, or the attorney general or a district attorney may bring an action within four years of the violation, and recover:
(1) one hundred dollars ($100) per day for each day the seller fails to:
(a) provide a copy of the outstanding real estate installment contract after a request from the purchaser; or
(b) record the outstanding real estate installment contract or a notice of interest or other memoranda of the real estate installment contract; or
(2) costs of the action and reasonable attorney fees.
C. If a seller violates Subsection E of Section 8 of the Real Estate Installment Contract Act, the purchaser, the attorney general or a district attorney may bring an action within four years of the violation and recover:
(1) two hundred fifty dollars ($250) for each day the seller fails to transfer title of the subject property to the purchaser; and
(2) costs of the action and reasonable attorney fees.
D. If a seller violates Section 12 or Subsection E of Section 19 of the Real Estate Installment Contract Act, the purchaser, the attorney general or a district attorney may bring an action within ninety days of the violation and recover:
(1) one hundred dollars ($100) per day for each day the seller fails to provide an accounting statement to the purchaser within the time specified in that section; and
(2) costs of the action and reasonable attorney fees.
E. Where a trier of fact finds that a seller charged with violating a provision of the Real Estate Installment Contract Act has willfully violated the provision, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the violation.
F. A trier of fact upon good cause shown may adjust the penalties described in this section.
SECTION 22. PURCHASER'S RIGHT TO DEDUCT.--If a seller is liable to a purchaser pursuant to Section 21 of the Real Estate Installment Contract Act, a purchaser may, without taking judicial action, deduct the amount of liability from any amounts owed to the seller under the terms of the real estate installment contract. Within ten days of receipt of request from the seller, the purchaser shall provide the seller with an itemization of all amounts deducted.
SECTION 23. SEVERABILITY.--If any part or application of the Real Estate Installment Contract Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
SECTION 24. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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