New York Codes, Rules and Regulations › Title 13 - DEPARTMENT OF LAW › Chapter II - SECURITIES TRANSACTIONS AND PERSONNEL › Subchapter B - REAL ESTATE SYNDICATES › Part 22 - NEWLY CONSTRUCTED, VACANT HOMEOWNERS ASSOCIATIONS OR NON-RESIDENTIAL PROPERTY OWNERS ASSOCIATIONS › Section 22.4 - Transmittal letter and certifications

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
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 offering plan, and containing the following unqualified
					 statements must be submitted with the plan and exhibits (i) at the time the
					 plan is submitted for filing, and (ii) immediately prior to its acceptance for
					 filing:
"I am the attorney who prepared the homeowners association
					 plan for the captioned property. I affirm as follows: Enclosed for filing
					 pursuant to Part 22, Newly Constructed, Vacant or Non-Residential Homeowners
					 Association, are three (3) copies of the offering plan together with two (2)
					 sets of Exhibits. 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 the attached offering plan and Exhibits based on
					 information from the sponsor. I have read all the printed copy submitted to the
					 Department of Law but expressly disclaim any responsibility to have made an
					 independent inspection of the building(s) or 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 offering plan."
(b)
Certification by sponsor.
Include in Part II of the plan and in the exhibits a
					 certification subscribed and sworn to by the sponsor and sponsor's principals
					 in the following form:
"We are the sponsor and the principals of the sponsor of
					 the homeowners association offering plan for the captioned property. We
					 understand that we have primary responsibility for compliance with the
					 provisions of Article 23-A of the General Business Law, the regulations
					 promulgated by the Department of Law in Part 22, and such other laws and
					 regulations as may be applicable. We have read the entire offering plan. We
					 have investigated the facts set forth in the offering plan and the underlying
					 facts. We have exercised due diligence to form a basis for this certification.
					 We jointly and severally certify that the offering plan does, and that
					 documents submitted hereafter by us which amend or supplement the offering plan
					 will:
(i) set forth the detailed terms
				  of the transaction and be complete, current and accurate;
(ii) afford potential investors, purchasers
				  and participants an adequate basis upon which to found their judgment;
(iii) not omit any material fact;
(iv) not contain any untrue
				  statement of a material fact;
(v)
				  not contain any fraud, deception, concealment, suppression, false pretense or
				  fictitious or pretended purchase or sale;
(vi) not contain any promise or
				  representation as to the future which is beyond reasonable expectation or
				  unwarranted by existing circumstances;
(vii) not contain any representation or
				  statement which is false, where we:
(a) knew
				  the truth;
(b) with reasonable
				  effort could have known the truth;
(c) made no reasonable effort to ascertain
				  the truth; or
(d) did not have
				  knowledge concerning the representation or statement made. This certification
				  is made under penalty of perjury for the benefit of all persons to whom this
				  offer is made. We understand that violations are subject to the civil and
				  criminal penalties of the General Business Law and Penal Law."
Sponsor's certification must include the additional
					 paragraph below if the HOA property is to be newly constructed and is limited
					 to roads and/or sewers and/or water lines constructed in accordance with local
					 government specifications (for public roads):
"We certify that the roads and/or sewers, and/or water
					 lines, when constructed, will be in accordance with local government
					 specifications (for public roads). After completion of such amenities and
					 before conveyance of the common property to the HOA, the plan will be amended
					 to include a certification by an engineer or architect (who must be registered
					 as an architect or be licensed to practice as a professional engineer in the
					 jurisdiction where the HOA is located) stating that the roads and/or sewers,
					 and/or water lines have, in fact, been constructed in accordance with local
					 government specifications (for public roads) and indicating the date of
					 completion. In the alternative, and/or if the construction of the roads and/or
					 sewers and/or water lines has not been completed prior to conveyance to the
					 HOA, a bond will be posted, funds will be escrowed, or other adequate security
					 will be provided in an amount to be determined by an engineer licensed to
					 practice as a professional engineer in the jurisdiction where the HOA is
					 located which amount shall not be less than the amount required to complete
					 such construction to the required specifications."