Summer 2009 • Issue 33, page 14
Impact of California's Subdivided Lands Act and Right to Repair Law on Foreclosing Lenders
By Riasanovsky, Leslie & Moore, Frederick*
(This is Part II of the article that began in our Spring
Issue. It examines whether and under what circumstances a lender who takes
title to a builder’s interest in a residential real estate project through
foreclosure, or a receiver appointed at the request of a lender, may be
deemed a “builder” within the meaning of the Right to Repair law.)
It is also questionable whether Civil Code Section 3434 protects a lender
who causes construction activities to be conducted at the property from
liability as a “builder” under the Right to Repair Law. The California
Supreme Court case which led to the enactment of Civil Code Section 3434,
Connor v. Great Western Sav. & Loan Ass’n1, concluded that a lender could
be held liable to homebuyers for construction defects because the lender
exceeded its traditional role as lender by actively participating in the
construction and sale of homes.
Although Civil Code Section 3434 limits the effect of the
Connor case, the
statute does not establish a bright line test for determining when a
lender has acted “outside the scope of the activities of a lender of
money.” Moreover, court cases decided under the laws of other states have
recognized that, in some circumstances, lenders who perform construction
activities on new homes acquired through foreclosure may be liable as
“developers” for defects in the homes.2
Accordingly, any lender whose security includes partially constructed
residential homes should strongly consider using a court-appointed
receiver to complete the construction of the homes prior to taking title
to the homes through foreclosure.3
Due to the uncertain meaning of the term lender in Civil Code Section 3434
noted above, it is also unclear whether that statute insulates a lender
from liability as a “builder” under the Right to Repair Law even where the
lender does not perform any construction activities on the homes after
taking title. It seems unlikely that a court would classify the lender as
a “builder,” “developer,” “general contractor,” or “contractor” within the
meaning of the Right to Repair Law if the lender does not perform any
construction activity on the homes.4 But it is more difficult to predict
whether the courts would construe a lender as an “original seller, who, at
the time of sale, was also in the business of selling residential units
for public purchase.”5
Foreclosing Lender Liability?
A lender would argue, among other things, that it is not an “original
seller” within the meaning of the Right to Repair Law because it did not
develop and manage the construction of the homes, is not the first entity
to sell the homes (i.e., the first sale of the homes occurred when the
homes were sold to the lender at the foreclosure sale), and is engaged in
the business of lending (which includes liquidating collateral for loans
upon which borrowers have defaulted), rather than in the business of
selling residential units for public purchase.
The suing homeowner in a construction defect case may argue that the
lender is an “original seller” within the meaning of the Right to Repair
Law because the lender is the first seller of the homes to members of the
general public, putting it in the business of selling residential units
for public purchase.
Which arguments will prevail is not evident from the statute or the
legislative history of the statute6. To date there do not appear to be any
reported court cases on point.
California case law existing at the time of the enactment of the Right to
Repair Law does appear to provide guidance on what the legislature
intended. Under prior cases an original seller of a newly constructed home
(as well as the builder) was deemed to warrant impliedly to the original
purchaser that the builder of the home “used reasonable skill and judgment
in constructing” the home7. An original seller of mass-produced homes was
deemed to warrant impliedly to its initial and subsequent purchasers that
the homes were “reasonably fit for their intended purpose” and was found
to be strictly liable for defects in products which failed to meet this
The primary rationale for imposing liability on the original seller given
by the courts was that the original seller has greater knowledge than the
buyer about the construction of the home and the buyer relies on that
“In the setting of the marketplace, the builder or seller of new
construction – not unlike the manufacturer or merchandiser of personalty –
makes implied representations, ordinarily indispensable to the sale, that
the builder has used reasonable skill and judgment in constructing the
building. On the other hand, the purchaser does not usually possess the
knowledge of the builder and is unable to fully examine a completed house
and its components without disturbing the finished product. Further,
unlike the purchaser of an older building, he has no opportunity to
observe how the building has withstood the passage of time. Thus, he
generally relies on those in a position to know the quality of the work to
be sold, and his reliance is surely evident to the construction
Where the original seller was not in a position to know the quality of the
builder’s work, some courts refused to impose liability on the seller. For
example, in Siders v. Schloo10, the court concluded that the implied
warranty doctrine did not apply to an individual who retained a contractor
to construct a home because the individual was not in the business of
commercial development and, the court suggested, did not have the
expertise to examine and evaluate the contractor’s work during
construction. Similarly, in East Hilton Drive Homeowners’ Assn. v. Western
Real Estate Exchange, Inc.11, the court concluded that a company which had
purchased newly constructed condominiums at a foreclosure sale and then
rehabilitated and sold them to their first occupants four years later was
not subject to the implied warranty doctrine because it did not have the
ability to examine the homes during construction:
“The Pollard case extended implied warranty liability to sellers of new
construction only. The homes here, although not occupied before the sale
to respondents, were built some four years before appellant acquired them.
If they could be considered new construction when appellant acquired them,
then the Pollard case would impose an implied warranty on that sale. But
appellant who had no part in building or financing the building of these
homes, cannot be considered a seller of new construction whether it
occupied the homes or not. The Pollard case did not say a warranty would
be implied for first occupants of buildings. It said the warranty would be
implied for sellers and builders of new construction. Appellant Western
had no better way of knowing of any defects in construction than did
respondents. Appellant is not a builder ... Pollard extended the warranty
because builders and sellers of new construction are in a better position
than buyers of new construction to know of defects. There is no reason to
extend this warranty to appellant simply because the homes had lain vacant
for a number of years.”
The foregoing cases suggest that, under California case law existing at
the time of enactment of the Right to Repair Law, a lender selling
completed homes acquired through foreclosure would not have been subject
to the implied warranty doctrine because, unlike the original builder and
seller of the homes, the lender was not in a better position than the
buyers of the homes to know of any construction defects12. Moreover, under
the East Hilton Drive Homeowners’ Assn. case, even a lender who performed
repair work on the homes before selling them might have been exempt from
implied warranty liability, although that conclusion is less certain13.
In light of such cases, as well as the lack of any evidence of legislative
intent to the contrary, it seems plausible that the legislature did not
intend for the phrase “original seller, who, at the time of sale, was also
in the business of selling residential units for public purchase” to
encompass a lender who acquires fully completed newly constructed homes
through foreclosure and does not perform any construction activities on
the homes. Moreover, that interpretation is certainly consistent with
Civil Code Section 3434, which, even if it is not strictly applicable to
lenders who have taken title to real property through foreclosure, clearly
evinces a public policy not to hold lenders liable for construction
defects as long as they do not overstep their traditional role of
financiers and have not made any misrepresentations to buyers.
Nevertheless, any lender contemplating taking title to newly constructed
homes needs to realize that there is uncertainty concerning whether the
lender may have potential liability for construction defects in the homes
(even if the lender did not perform any construction) and should take
appropriate steps to preserve its arguments under Civil Code Section 3434
and the Right to Repair Law in the event of litigation. It is important to
remember that, even if Civil Code Section 3434 applies, it does not shield
a lender from liability “if the lender has been a party to
misrepresentations with respect to such real or personal property.”14
Therefore, among other things, the lender should make sure that it is
giving appropriate disclosures concerning the homes to prospective
In addition, that portion of the definition of “builder” in the Right to
Repair Law referring to an “original seller” requires that the original
seller be “in the business of selling residential units for public
purchase.”15 Accordingly, the lender should take appropriate measures to
make clear to prospective purchasers that the lender is not the builder or
developer of the homes and has acquired, and is selling the homes, as part
of the process of collecting on the collateral for loans.
Lenders should evaluate each situation on a case-by-case basis. However,
among other things, a lender may want to consider some of the following
Whether the public report and governing documents (if applicable),
lender’s disclosures, and advertising media adequately disclose that the
lender is not the builder or developer of the homes, that the lender has
no information or only limited information about the construction of the
homes and the financial condition and insurance of the builder or
developer, and that the prospective purchaser will not be able to look to
the lender in the event any construction defects in the homes are
Whether the broker retained by the lender to sell the homes is
experienced and knowledgeable about the documents used by the lender and
properly supervises its sales staff to disclose to prospective purchasers
that the lender is not the builder or developer of the homes (as well as
the other items referenced herein);
Whether the lender will sell the homes on an “as-is” basis and require a
release from prospective purchasers (as note
above, if so, the governing documents approved by the DRE may need to be
modified to reflect this condition) and whether the sales documents make
clear that the buyer has the responsibility to investigate the property
and the purchase price has been negotiated and reflects the “as-is” nature
of the sale;
Whether the lender will offer prospective purchasers the opportunity to
have any optional items installed at the homes and, if so, how that should
be structured to minimize any potential liability to the lender;
Whether the lender will offer any form of third party warranty in
connection with the sale of the homes16;
Whether the lender has made all disclosures required by law and,
assuming the lender is providing prospective purchasers with disclosures
prepared by the builder and/or developer, whether the lender has made
appropriate disclaimers regarding the information contained in the
builder’s and/or developer’s disclosures; and
Whether the lender’s purchase and sale documents should address the
notice, pre-litigation options, and other requirements imposed on builders
at the time of sale by the Right to Repair Law, subject to the caveat that
they shall apply only if the Right to Repair Law is ultimately determined
to apply to the lender.
Many, if not all, of the foregoing issues should also be considered by a
receiver who has been appointed by a court at the request of a secured
lender and is contemplating selling newly constructed homes in residential
real estate developments. The definition of “builder” in the Right to
Repair Law does not expressly exclude court-appointed receivers17. Thus,
like a lender who forecloses on newly constructed homes, a court-appointed
receiver also runs a risk of being characterized as an “original seller,
who, at the time of sale, was also in the business of selling residential
units for public purchase.”
This risk would appear to be minimal, however, as long as the receiver
does not exceed his authority under the court’s orders in selling the
homes, since the receiver is the agent of the court and, as such, is
clearly not in the “business” of selling homes18.
Nevertheless, to avoid potential disputes with disgruntled homeowners over
the scope of the receiver’s agency, a receiver should take appropriate
measures to ensure that prospective purchasers clearly understand the
receiver’s role. At a minimum, the receiver's purchase and sale documents
should emphasize that the receiver is an agent of the court and is selling
the homes pursuant to the directives and orders of the court. Other
issues, such as those discussed above with respect to foreclosing lenders
should also be considered (e.g., disclosures and advertising, training of
sales staff, use of “as-is” provisions, availability of optional items,
third-party warranties, disclaimers relating to builder’s and developer’s
documents, notice, pre-litigation, options, and other requirements imposed
by the Right to Repair Law on builders).
Any lender (or receiver appointed at the request of the lender) who is
contemplating selling newly constructed homes in a California residential
development should give considerable thought to the potential
applicability of the Subdivided Lands Act and the Right to Repair Law
before commencing the selling process. The failure to do so could result
in unexpected consequences, including potential civil and criminal
liability under the Subdivided Lands Act and potential liability for
construction defects under the Right to Repair Law. However, with advance
planning and assistance from the proper real estate consultants, a lender
(or receiver) may be able to reduce one or more of those risks.
*Leslie T. Riasanovsky is an attorney practicing real estate and business
law, who frequently works with Frederick C. Moore in Irvine, California.
*Frederick C. Moore is a partner in the Irvine, California law firm of
Gallagher & Moore whose practice focuses on residential and commercial
real estate development and general real estate law.
1 Connor v. Great Western Sav. & Loan Ass’n. (1968) 69 Cal.2d 850.
2 Chotka v. Fidelco Growth Investors, 383 So.2d 1169 (Fla.App. 2 Dist.
1980); Port Sewall Harbor and Tennis Club Owners Association, Inc., 463
So.2d 530 (Fla.App. 4 Dist. 1985) (Lender may be held liable for
performance of express representations made to the buyer, for patent
construction defects in the entire project, and for breach of any
applicable warranties due to defects in the portions of the project
completed by the lender); Roundtree Villas Ass’n. v. 4701 Kings Corp., 321
S.E.2d 46 (S.C. 1984)(Lender may be held liable for damages proximately
caused by allegedly negligent repairs made at the lender’s request and
funded by the lender after the builder deeded title to the property to a
corporation created by the lender, but not for any original damages
proximately caused by the negligence of the builder); see also
Board of Directors, 512 N.E.2d 316 (Ohio 1987)(A case which does not
involve construction defects, but discusses various factors the courts
should consider in determining whether a lender who takes title to
property through foreclosure or a deed in lieu of foreclosure should be
considered a developer).
3 McFarland and Crispin, “A Primer for Lenders: Legal Aspects of Practical
Solutions for Defaulted Residential Development Projects and Loans”
published in Issue 29 of Receivership News (Summer 2008).
4 Cal. Civ. Code §§ 911, 3434.
5 Cal. Civ. Code § 911.
6 Cal. Civ. Code §895 et seq.; Senate Judiciary Committee Analysis of SB
800, Martha M. Escutia, Chair 2001-2002, Regular Session; Senate Judiciary
Committee Analysis of AB 903, Martha M. Escutia, Chair 2003-2004, Regular
Session; Assembly Committee on Judiciary Analysis of AB 903, Ellen M.
Corbitt, Chair, 2003.
7 Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374.
8 Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224; see also Avner v. Longridge Estates (1969) 272 Cal.App.2d 607.
9 Pollard v. Saxe, supra at 379; see also Becker v. IRM Corp. (1985) 38
Cal.3d 454; Kriegler v. Eichler Homes, Inc (1969) 269 Cal.App.2d 224
(recognizing that the original seller’s ability to obtain insurance
coverage was another public policy reason for imposing liability on the
10 Siders v. Schloo (1987) 188 Cal.App.3d 1217.
11 East Hilton Drive Homeowners’ Assn. v. Western Real Estate Exchange,
Inc. (1982) 136 Cal.App.3d 630, 632-33.
12 The court’s language in the East Hilton Drive Homeowners’ Assn. case
suggesting that a lender who plays “a part in …financing the building” of
the homes may be subject to implied warranty liability appears to be no
more than an acknowledgment of the established rule that a lender who
oversteps its traditional role of financier may be liable for construction
defects under Civil Code Section 3434 and associated case law.
13 East Hilton Drive Homeowners’ Assn., supra.
14 Cal. Civ. Code §3434.
15 Cal. Civ. Code §911.
16 A third party limited warranty may bolster the enforceability of the
“as-is” provision and lender’s disclaimer of warranties. See Hicks v.
Superior Court (Kaufman and Broad Home Corp.) (2004) 115 Cal.App.4th 77.
Ideally, the third party limited warranty should satisfy the “fit and
finish” warranty requirements set forth in Civil Code Section 900 just in
case the lender is ultimately determined to be a “builder” under the Right
to Repair Law.
17 Cal. Civ. Code §911.