CHAPTER 336
FORMERLY
HOUSE BILL NO. 504
AN ACT TO AMEND TITLE 25 OF THE DELAWARE CODE RELATING TO MANUFACTURED HOME COMMUNITIES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend §7026, Title 25 of the Delaware Code by striking §7026 in its entirety and by substituting in lieu thereof a new §7026 to read:
"§7026. Right of first offer; notice required before sale of manufactured home community.
(a) Upon reaching a decision to sell, transfer, or convey all or part of a manufactured home community, the manufactured home community's owner shall provide notice of the home owner association’s right of first offer to purchase all or part of the community to the community's home owner association if one exists, to the Delaware Manufactured Home Owners Association (DMHOA) or its successor, and to the Delaware Manufactured Home Relocation Authority (Authority).
(1) The Authority shall send, pursuant to §7024 of this subchapter, an annual notice to all registered community owners, stating that the community owner is required to comply with the requirements of this section if the community owner decides to sell, transfer, or convey all or part of the community. In addition, the notice must state that every manufactured home community must be registered with the Delaware Manufactured Home Relocation Authority, and that all fund assessments must be paid to date prior to the sale, transfer, or conveyance of the community.
(2) The Authority shall notify the manufactured home community's owner if a home owner association for that community has been registered with the Authority.
(b) (1) A home owner who is a community owner, or an employee, agent, or servant of, or who has any business relationship with, the community owner may not directly or indirectly participate in the process, except that the home owner may vote. Nothing herein prevents a home owner association, after a vote of the members present, from excluding a community owner, or an employee, agent, or servant of the community owner from a meeting where confidential information relating to the home owner association's strategies in connection with the purchase will be discussed.
(2) There can be only one home owner association per community eligible to participate in the process of this section. That home owner association must register with the Delaware Manufactured Home Relocation Authority as prescribed by the Authority. The first association to register in compliance with the requirements of this section will be the official home owner association eligible to participate in the process. In order to be eligible for registration with the Authority, the home owner association must adopt by-laws.
(c) If a home owner association wishes to use its right of first offer pursuant to subsection (a) of this section, either directly through a community owner or its designated agent, or indirectly through DMHOA or its successor or through the Authority, the association must have written bylaws. The bylaws of the incorporated home owner association will conform substantially to the material in the following model form:
'MODEL BYLAWS
OF
[INSERT COMMUNITY NAME] HOME OWNERS ASSOCIATION
ARTICLE I
The name of the corporation is "[INSERT COMMUNITY NAME] HOME OWNERS ASSOCIATION", hereinafter referred to as the "Association".
The principal office of the Association is located at the home of the acting President of the Association, but meetings of members and directors may be held at places designated by the Board of Directors within the State of Delaware, [NAME OF COUNTY] County, where the manufactured home community is located.
The name and address of the Association’s registered agent in the State of Delaware is as set forth in the Certificate of Incorporation.
ARTICLE II
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the Association and the year of its incorporation.
Each home owner of each home site, as defined in the record plan of the community on tax parcel maps, for as long as the owner is and remains as such, is automatically a member of the Association. At all meetings of the Association, the owner or owners of each home are entitled collectively to cast the vote or votes provided for by the Certificate of Incorporation for the Association and in these bylaws. The vote or votes may be cast in person or by proxy. The owner or owners of each home are collectively entitled to one vote on all matters. If more than one person holds an interest in a home, all persons holding an interest are members of the Association, and the vote for the home is to be exercised as they among themselves determine; but in no event may more than one (1) total vote be cast with respect to the home.
Section 1. First Meeting of the Members. The first meeting of the Members shall be called by the initial Board of Directors for the purpose of nominating and electing a Board of Directors consisting of the owners of the community's homes. The initial Board of Directors shall send each home owner notice of the meeting at least [INSERT NUMBER] days before the meeting. The notice shall specify the place, day, and hour of the meeting and shall state that the purpose of the meeting is to nominate and elect a new Board of Directors. Nominations shall be accepted by the initial Board of Directors in any form up and until the time of the election. A list of nominations, including the offices in which the nominee is interested, shall be prepared by the initial Board of Directors. Elections shall be by ballot, by plurality vote. Notwithstanding any contrary provision in the governing documents, quorum requirements for nomination and election of the first Board of Directors consisting of home owners are satisfied if the meeting is properly noticed in conformance with this section.
Section 2. Annual Meeting of the Members. The members of the Association shall meet at least once each year, which means a period of 12 consecutive months, at a time and place established by the Directors, for the purpose of nominating and electing a Board of Directors, or replacements thereto, and conducting other business that may come before the meeting. Members of the Board of Directors must be members of the Association. Nominations may be by proxy received by the Board of Directors prior to the election of the Directors, and may also be made at the meeting. A list of nominations, including the offices in which the nominee is interested, shall be prepared by the Board of Directors. The Board of Directors shall oversee the election. A Director shall remain in office until his or her replacement is elected. Elections shall be by ballot, by plurality vote.
Section 3. Special meetings. Special meetings of the members may be called at any time by the President, and must be called upon a request in writing or by the vote of the majority of the Directors, or at the request in writing of six (6) or more members of the Association.
Section 4. Notice of meetings. Written notice of each meeting of the members of the Association must be given by, or at the direction of, the secretary or the person authorized to call the meeting. Notice must be mailed, postage prepaid, or delivered by hand at least [INSERT NUMBER] days before the meeting to each member entitled to vote at the meeting, addressed to the member’s address last appearing on the books of the Association, or supplied by the member to the Association for the purpose of notice. The notice shall specify the place, day, and hour of the meeting and, in the case of a special meeting, the purpose of the meeting. No change in the time or place of a meeting for the election of Directors, as fixed by these Bylaws, may be made within the [INSERT NUMBER] days immediately before the day on which the election is to be held. In case of any change in the time or place for an election of Directors, notice must be given in person to each member entitled to vote, or be mailed to the member’s last known post office address, at least [INSERT NUMBER] days before the election is held.
Section 5. List of members. The Secretary shall prepare a complete alphabetical list of members entitled to vote. The list must be open for examination by any member at the principal office of the Association and the place of election for [INSERT NUMBER] days prior to the election.
Section 6. Proxies. Each member entitled to vote is, at every meeting of the members, entitled to vote in person or by proxy, in writing and signed by the member; but no proxy may be voted after one (1) year from its date, unless it specifically provides for a longer period. A proxy is revocable at any time, and shall automatically cease upon conveyance of the home. The right to vote by proxy is subject to the right of the Board of Directors to close the transfer books or to fix a record date for voting members as hereinafter provided; and, if the Directors do not exercise this right, no vote may be cast at an election for Directors by anyone who has become a member of the Association within [INSERT NUMBER] days of the election. Only one (1) vote may be cast with respect to each home in the Community. If joint owners are unable to agree among themselves about how to vote on any given matter, they lose their right to vote on the matter, in accordance with Article II, Section 2 of these Bylaws.
Section 7. Quorum. At a noticed meeting of members entitled to cast votes, or of proxies entitled to cast votes, 33% of the total votes constitute a quorum for any action, except as otherwise provided in the Certificate of Incorporation or in these Bylaws. If, however, a quorum is not present at a meeting, the members entitled to vote have the power to adjourn the meeting, without notice other than announcement at the meeting, until a quorum is present.
BOARD OF DIRECTORS: SELECTION; TERM OF OFFICE
Section 1. Number. The property and business of the Association shall be managed and controlled by its Board of Directors, consisting of three (3) or more Directors, not to exceed [INSERT NUMBER]. Except for the initial Board of Directors, Directors must be members of the Association.
Section 2. Election. At the first meeting of the members, as set forth above, the members shall elect the Directors for a one (1) year term. The Directors shall hold office until the next annual election and until their successors are elected and qualify.
Section 3. Removal. Any Director may be removed from the Board, with or without cause, by a majority vote of the members of the Association. In the event of the death, resignation, or removal of a Director, a successor shall be selected by the remaining members of the Board, though less than a quorum, by majority vote, and shall serve for the remainder of the unexpired term of the Director’s predecessor.
Section 4. Compensation. A Director may not receive compensation for any service rendered to the Association. However, a Director may be reimbursed for actual expenses incurred in the performance of his or her duties.
Section 5. Action taken without a meeting. Directors have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the Directors. Any action so approved has the same effect as though taken at a meeting of the Directors.
Section 1. Regular meetings. After each annual election of Directors, the newly elected Directors shall meet for the purpose of organization, the election of officers, and the transaction of other business, at a place and time fixed by the members at the annual meeting. If a majority of the Directors are present at that place and time, no prior notice of the meeting is required to be given to the Directors. The place and time of the meeting may also be fixed by written consent of the Directors.
Section 2. Special meetings. Meetings of the Directors may be called by the President on [INSERT NUMBER] days notice in writing or on [INSERT NUMBER] days notice by telephone to each Director, and shall be called by the President in like manner on the written request of two (2) Directors. A majority of the Directors shall constitute a quorum, but a smaller number may adjourn from time to time, without further notice, until a quorum is secured.
POWERS AND DUTIES OF THE BOARD
Section 1. Powers. The Board of Directors has the power to:
(a) exercise for the Association all powers, duties, and authority vested in or delegated to the Association and not reserved to the membership by other provisions of these Bylaws or the Certificate of Incorporation;
(b) declare the office of a member of the Board of Directors to be vacant if the member is absent from three (3) consecutive regular meetings of the Board of Directors;
(c) employ a manager, an independent contractor, or other employees as the Board considers necessary, and to prescribe their duties;
(d) close the membership rolls of the Association for a period not exceeding [INSERT NUMBER] days preceding the date of any meeting of members; and
(e) purchase the community on behalf of the home owners.
Section 2. Duties. The Board of Directors has the duty to:
(a) cause to be kept a complete record of all of its acts and corporate affairs, and to present a statement of its acts and corporate affairs to the members at the annual meeting of the members or at any special meeting when the statement is requested in writing by five (5) or more members of the Association;
(b) supervise all officers, agents, and employees of the Association, and to see that their duties are properly performed;
(c) procure and maintain adequate liability and other insurance considered necessary or desirable in connection with the services to be performed by the Association under these Bylaws;
(d) cause all officers, employees, or independent contractors having fiscal responsibilities to be bonded, as the Board considers appropriate; and
(e) perform other duties as provided in these Bylaws.
The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate committees that the Board considers necessary or desirable. Each committee shall consist of one (1) or more of the Directors of the Board of Directors and other member(s) of the Association as designated by the Board of Directors in the resolution. Committees shall meet at stated times or on notice to all by any of their own number. They shall adopt their own rules of procedure. A majority of committee members constitutes a quorum; the affirmative vote of a majority of the whole committee is necessary in every case. A committee has and may exercise the powers of the Board of Directors to the extent provided in the resolution that establishes it.
OFFICERS OF THE ASSOCIATION
The officers of the Association are a president, one or more vice-presidents, a secretary, a treasurer, and other officers that may, from time to time, be chosen by the Board of Directors. The president and vice-presidents must be chosen from among the Directors. The officers of the Association hold office until their successors are chosen and qualify in their stead. An officer chosen or appointed by the Board of Directors may be removed with or without cause at any time by the affirmative vote of a majority of the whole Board of Directors. If the office of an officer becomes vacant for any reason, the vacancy must be filled by the affirmative vote of a majority of the whole Board of Directors.
Section 1. Duties of the President. The President is the chief executive officer of the Association. The President has the duty to preside at all meetings of the members and Directors; to have general and active management of the business of the Association; to see that all orders and resolutions of the Board of Directors are carried into effect; to execute all agreements and other instruments in the name of the Association and to affix the corporate seal thereto when authorized by the Board of Directors.
The President oversees the general supervision and direction of the other officers of the Association to ensure that their duties are properly performed.
The President shall submit a report of the operations of the Association for the year to the Directors at their meeting next preceding the annual meeting of the members, and to the members at their annual meeting.
The President is an ex-officio member of all committees and has the general duties and powers of supervision and management usually vested in the office of the president of a corporation.
Section 2. Vice-President. The Vice-President or Vice-Presidents, in the order designated by the Board of Directors, are vested with all the powers and are required to perform all the duties of the President in the President’s absence or disability, and shall perform other duties that may be prescribed by the Board of Directors.
Section 3. President Pro Tempore. In the absence or disability of the President and the Vice-Presidents, the Board may appoint from their own number a president pro tempore.
Section 4. Secretary. The Secretary shall attend all meetings of the Association, the Board of Directors, and all committee meetings. The Secretary acts as clerk of these meetings and shall record all of the proceedings of the meetings in a book kept for that purpose. The Secretary shall give proper notice of meetings of members and Directors, and shall perform other duties that are assigned to the Secretary by the President or the Board of Directors.
Section 5. Treasurer. The Treasurer has custody of the funds and securities of the Association, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Association. The Treasurer shall deposit all monies and other valuable effects in the name and to the credit of the Association in the depositories designated by the Board of Directors.
The Treasurer shall disburse the funds of the Association as may be ordered by the Board or President, taking proper vouchers for these disbursements, and shall render to the President and Directors, whenever they may require it, an account of all the Treasurer’s transactions as Treasurer and of the financial condition of the Association; and at the regular meeting of the Board next preceding the annual members’ meeting, a like report for the preceding year.
The Treasurer shall keep an account of the members of record in the manner and subject to whatever regulations that the Board of Directors may prescribe.
The Treasurer shall give the Association a bond, if required in writing by the Board of Directors, in sum and in form and with corporate security satisfactory to the Board for the faithful performance of the duties of the Treasurer’s office and for the restoration to the Association, in case of the Treasurer’s death, resignation, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the Treasurer’s possession and belonging to the Association. The bond and security must, if required, be provided at the Association’s expense. The Treasurer shall perform other duties that the Board of Directors may from time to time prescribe or require.
Section 6. Delegation of duties. In case of the absence or disability of any officer of the Association or for any other reason considered sufficient by the majority of the Board of Directors, the Board may temporarily delegate the officer’s powers or duties to any other officer or to any Director.
The books, records and papers of the Association are at all times, during reasonable business hours, subject to inspection by any member. The Certificate of Incorporation and the Bylaws of the Association are available for inspection by any member at the principal office of the Association. Copies may be purchased at a reasonable cost, to be determined by the Board of Directors, to defray copying and administrative costs, but not to exceed five dollars ($5.00) for both documents.
All checks, drafts, or orders for the payment of money must be signed by the President and the Treasurer, or by such other officer or officers as the members of the Association may approve.
ARTICLE XII
MEMBERS OF RECORD
The Association is entitled to treat the title holder or holders of record of any home as members in fact of the Association, and accordingly are not bound to recognize any equitable or other claim to or interest in such home or memberships on the part of any other person, whether or not it has express or other notice thereof, save as expressly provided by the laws of Delaware.
The fiscal year of the Association begins on the first day of January of each year.
Section 1. Amendment. These Bylaws may be amended, altered, repealed, or added to at any regular meeting of the members or at any special meeting called for that purpose, by affirmative vote of the majority of the members of the Association.
INCORPORATED BY REFERENCE
All of the terms, conditions, matters, and information contained and more fully set forth in the Certificate of Incorporation and the Bylaws are incorporated by reference.
All reference herein to the masculine is deemed to include the feminine or neuter genders, and vice versa, as appropriate. All reference herein to the singular is deemed to include the plural, and vice versa, as appropriate.
IN WITNESS WHEREOF, the undersigned, being all of the Directors of the Association, have hereunto set their hands this ____ day of ___________, 20___.
Witness:
_________________________________ _________________________________
__________________________, Director
________________________________ _________________________________
__________________________, Director
_________________________________ _________________________________
__________________________, Director
CERTIFICATION
I, the undersigned, do hereby certify that I am the elected and acting secretary of the [COMMUNITY] Home Owners Association, a Delaware corporation, and that the foregoing Bylaws constitute the original Bylaws of the Association, as adopted at a meeting of the Board of Directors thereof, held on the ____ day of ______________, 20__.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of the Association this ____ day of ________________, 20___.
_________________________________
__________________________, Secretary.'.
(d) (1) If the Authority has sent the required annual notice to a community owner and the community owner then decides to sell, transfer, or convey all or part of the manufactured home community, a right of first offer must be extended. If the Authority has informed the community owner that a registered home owner association exists in the community, the community owner must extend the right of first offer directly to the home owner association. The right of first offer must also be extended indirectly to the home owner association through DMHOA or its successor and through the Authority. The right of first offer must be sent by overnight service with signature receipt. Copies of the right of first offer must be sent pursuant to §7024 of this subchapter to the Consumer Protection Unit of the Office of the Attorney General of the State of Delaware and to each home owner in the affected community. If the Authority has not informed the community owner that a registered home owner association exists in the community, the community owner’s notice to the Authority must include a list of the names and addresses of all home owners in the community. The Authority shall then, within 5 business days of receipt of the community owner’s notice, send the notice to all home owners on the list.
(2) The notice of a right of first offer must state:
(A) that the community owner has decided to sell, transfer, or convey all or part of the community;
(B) the price and any special conditions material to the transaction for the sale, transfer, or conveyance of the community;
(C) all significant and material information, including operating expenses and other relevant operating and capital expenditure costs related to the community. The release of this information must be preceded by a signed reasonable confidentiality statement. The statement may include penalties for breach of confidentiality;
(D) that the information and confidentiality statement must be identical if a third party is reviewing the potential transaction;
(E) that the home owner association has 30 calendar days from the date of mailing of the notice to respond to the offer.
(e) (1) A home owner association must respond in writing to the notice of a right of first offer and send the response by overnight service with signature receipt within 30 calendar days from the date of the mailing of the notice sent by the community owner to the association. The response must clearly indicate that:
(A) the members of the association intend to accept the purchase price and any special conditions material to the transaction for the sale, transfer, or conveyance of the community, as described in the notice of right of first offer; or,
(B) the members of the association do not accept the price and any special conditions material to the transaction for the sale, transfer, or conveyance of the community, as described in the notice of right of first offer, but that they intend to offer to purchase the community at an alternative price; or,
(C) the members of the association have no interest in purchasing the community and that they do not intend to proceed any further in the transaction, or, if the members of the association do not respond, they shall be deemed to have notified the community owner that they have no interest in purchasing the community.
(2) An alternative offer of price for the sale, transfer, or conveyance of the community from the home owner association remains valid for 12 months, unless withdrawn by the home owner association in writing and sent to the community owner by overnight service with signature receipt.
(A) A notice to withdraw an alternative offer must be approved by the members of the home owners association. The approval percentage must be stated in the notice to the community owner.
(B) The community owner may not sell the community at or less than the price offered in the alternative offer from the home owner association during the 12-month period of the alternative offer, unless the offer is withdrawn as described in subsection (e)(2)(A) of this section.
(C) The community owner may accept an offer higher than the original price or the alternative price, if any, offered by the home owner association without further obligation to the home owner association, regardless of the 12-month period of the alternative offer, unless there are significant and material changes in terms and conditions. However, the home owner association must be given 7 business days to match the higher offer under the following circumstances:
(i) If the higher offer is less than $40 million and the home owner association's alternate price is within 6% of the offer;
(ii) If the higher offer is $40 million or greater and the home owner association's alternate price is within 4.5% of the offer.
(3) If the home owner association responds that it has no interest in purchasing the community, or fails to respond within the 30-day response period pursuant to subsection (e)(1) of this section, or fails to respond within 7 business days pursuant to subsection (e)(2)(C) of this section, the community owner may file an affidavit of compliance, pursuant to subsection (m) of this section, at the Office of the Recorder of Deeds in the appropriate county.
(4) Failure of the home owner association to accept the price and any special conditions material to the transaction for the sale, transfer, or conveyance of the community as stated in the notice of right of first offer, or failure to state an alternative price pursuant to subsection (e)(1)(B) of this section within the 30-day response period, or failure to respond within 7 business days pursuant to subsection (e)(2)(C) of this section eliminates the right of the home owner association to purchase the community during the remainder of the 12-month period that commenced on the date of the community owner’s notice of intention to sell, transfer, or convey all or part of the community.
(f) If a community owner has decided to sell, transfer, or convey all or part of the community, the community owner and the home owner association shall negotiate in good faith for the sale, transfer, or conveyance of the community to the home owner association. If a party fails to negotiate in good faith, the court shall award reasonable attorney’s fees to the prevailing party.
(g) If a home owner association gives written notice to a community owner within 30 calendar days of the association's intent to purchase the community at the community owner’s specified price, along with any special conditions material to the transaction, or if the community owner agrees to sell the community at the alternative price offered by the home owner association, the home owner association has an additional 30 days to formalize the agreed price, terms, and conditions into a contract of sale. This 30-day period may not be used to re-negotiate the price, terms, or conditions agreed to during the first 30-calendar-day period unless mutually agreed to in writing. Time is of the essence. Failure of the home owner association to formalize a contract of sale during the 30-day period following an agreement of price, terms, and conditions eliminates any right of the home owner association to purchase the community during the remainder of the 12-month period that commenced on the date of the community owner's notice of intention to sell, transfer, or convey all or part of the community.
(h) (1) Upon a formalized contract of sale being signed by both parties, the change of ownership of the community must be completed within 90 days. Time is of the essence.
(2) The completion date may be extended beyond the 90-day period if both parties agree to an extension. However, neither party is obligated to agree to an extension. An agreement to extend the settlement date must be in writing and signed by both parties to the transaction.
(3) If, for any reason except default by the community owner, the home owner association and the community owner do not complete the sale within the 90-day period as specified by paragraph (1) of this subsection before the expiration of the extension period agreed to by the parties under paragraph (2) of this subsection, the right-of-first-offer obligations of the community owner to the home owner association are terminated, and the community owner may sell, transfer, or convey all or part of the community to any third party at the price offered in the right of first offer, or at a higher price or lower price, for the remainder of the 12-month period that commences on the date of the community owner's notice of intention to sell, transfer, or convey all or part of the community.
(i) (1) If the Authority has sent the required annual notice to a community owner and the community owner then decides to sell, transfer, or convey all or part of the manufactured home community at auction, the community owner shall notify the home owner association directly of its intention if the Authority has informed the community owner of a registered home owner association in that community. The community owner's notice must also be sent to DMHOA or its successor, to the Authority, and to the Consumer Protection Unit of the Office of the Attorney General of the State of Delaware. A copy must be sent pursuant to §7024 of this subchapter to each home owner in the affected community.
(2) The notice of a community owner’s intention to sell, transfer, or convey all or part of the manufactured home community at auction must be sent within 10 days after a date for the auction has been established and at least 60 days prior to the date of the auction. The notice must be sent by overnight service with signature receipt. The notice must state:
(A) the intention to sell the community at auction;
(B) the date, time, and place of the auction; and
(C) the terms of the auction, which must be similar to other auction practices and standards in the area.
(3) At least 60 days prior to a scheduled auction, the community owner shall provide all pertinent information directly to the home owner association if the Authority has informed the community owner of a registered home owner association in the community. Copies of the pertinent information must also be sent to DMHOA or its successor, to the Authority, and to the Consumer Protection Unit of the Office of the Attorney General of the State of Delaware. Pertinent information, to be provided by third-party professionals, includes, but is not limited to, descriptions of topography, soils (including but not limited to a Phase I environmental soil study and a Phase II study, if required), flood plain study, wetlands study, water system, water quality, distribution system, sanitary survey, wastewater disposal, access, egress, and interior community roads, storm water drainage, electrical, telephone, and cable utility services, boundary survey, and home lot plan if available, along with a USGS plan, aerial photo, tax map, flood zone map, soils map, site photographs, and a future repair and capital improvement analysis. A community owner may not be held liable for misinformation provided by a third-party professional.
(4) Within 30 days of receiving the notice of the auction, a home owner association in the affected community may make an offer to purchase the community. If the home owner association makes an offer, and the community owner accepts the offer, the parties shall negotiate in good faith for the sale, transfer, or conveyance of the community to the home owner association. If the community owner accepts the offer, a contract shall be formalized and ownership shall be transferred as provided in subsections (g) and (h) of this section.
(5) If the home owner association makes an offer to purchase the community within 30 days after receiving the notice of the auction sale, but the community owner does not accept the offer, the community owner may proceed to auction the community. The home owner association's offer must be the minimum bid at the auction and the community owner may not accept a bid of less than the home owner association's offer.
(6) If a home owner association participates in the auction process by providing deposit monies, if required, the home owner association has the right to purchase the community within 7 days after the date of the auction for 1% higher than the winning bid with the same terms and conditions. If a home owner association decides to purchase the community for 1% higher than the winning bid under the same terms and conditions, a contract of sale must be formalized within 20 calendar days, and the change of ownership must be completed within 90 days. However, if the home owner association does not participate in the auction process, or if the home owner association fails to respond within 7 business days and to formalize a contract within 20 calendar days, or to complete the change of ownership within 90 calendar days, the community owner has no further obligation to the home owner association.
(7) If the winning bidder does not complete the transaction, and if the association still does not have the next highest bid, and if the community owner still intends to sell the community to the next highest bidder, the association must repeat the procedure set forth in paragraph (6) of this subsection.
(8) A community owner has the right to accept or reject any auction bids.
(j) If a community owner intends to offer more than one community for sale in a single transaction, a simple majority of members of the respective home owner associations in Delaware must vote in the affirmative to support their letter of response to the community owner. If a community owner offers a Delaware community for sale, along with one or more communities not located in the State of Delaware, the community owner must afford the residents of the Delaware community a right of first offer as prescribed by this section for their community, separate and apart from the community or communities not located in the State of Delaware.
(k) A home owner association may transfer or assign a right of first offer only to an organization formed or controlled by the home owners to assist only in the purchase and operation of the community. Therefore, other than the preceding condition in this subsection, a right of first offer is neither transferable nor assignable.
(l) If a community owner or a home owner association fails to comply with any provision of this section, either party has standing to seek equitable relief, including declaratory relief, injunctive relief, and the appointment of a receiver. The offending party is liable for actual damages. If a court of competent jurisdiction finds that the offending party willfully and intentionally failed to comply with the requirements of this section, it is a per se violation of the Consumer Fraud Statute, Title 6, §2511 et seq., and the aggrieved party may be entitled to recover treble damages. In any action under this section, the court may award reasonable attorney’s fees and costs.
(m) Affidavit of compliance with the requirements of this section.
(1) A community owner may, if appropriate under the circumstances, record in the Registry of Deeds of the county in which the community is located an affidavit in which the community owner certifies that:
(A) the manufactured home community owner has complied with the requirements of this section, and has included a copy of the notice sent to the residents of the community; or
(B) the sale, transfer, or conveyance of the community is exempt from this section, pursuant to subsection (n) of this section.
(2) A party acquiring an interest in a manufactured home community, and title insurance companies and attorneys preparing, furnishing, or examining any evidence of title, have the right to rely on the truth and accuracy of all statements appearing in an affidavit recorded pursuant to paragraph (1) of this subsection, and are under no obligation to inquire further as to any matter or fact relating to the community owner’s compliance with the provisions of this section.
(n) Chapter 71 of Title 25 does not apply to the sale, transfer, or conveyance of manufactured home communities under this section.
(o) Right of first offer; exceptions to notice required before the sale of a manufactured home community.
Notwithstanding any provision to the contrary, a manufactured home community owner is not required to give notice of or extend a right of first offer to a home owner association, to DMHOA or its successor, or to the Authority under the following circumstances:
(1) a bank, mortgage company, or any other mortgagee has foreclosed on the community and the mortgagee is selling the community at a foreclosure sale, or is selling the community after having purchased the community at a foreclosure sale;
(2) the sale, transfer, or conveyance of the community is to a family member of the community owner on the modified Table of Consanguinity or to a trust, the beneficiaries of which are family members of the owner on the modified Table of Consanguinity; or the sale, transfer, or conveyance is to a family member on the modified Table of Consanguinity who is included within the line of intestate succession if the community owner dies intestate;
(3) the sale, transfer, or conveyance is by a partnership to one or more of its partners;
(4) the sale, transfer, or conveyance is between joint tenants or tenants-in-common;
(5) the sale, transfer, or conveyance is by gift, devise, or operation of law;
(6) the sale, transfer, or conveyance is pursuant to eminent domain;
(7) the sale, transfer, or conveyance is to an affiliate: An 'affiliate' means any individual, corporation, limited partnership, unincorporated association, or entity which holds any direct or indirect ownership interest in the community; provided, however, that the notice and extension of the right of first offer provided for herein must be granted to a home owner association where the majority interest in the ownership of the community or the power, directly or indirectly, to direct or cause the direction of the management and policies over the community, whether through ownership of voting stock, by contract, or otherwise, is sold, transferred, or conveyed to any individual, corporation, limited partnership, unincorporated association, or other entity which has not held such a direct or indirect ownership interest in the community for three (3) or more years;
(8) the sale, transfer, or conveyance is an exchange of the manufactured housing community for all, or substantially all, of other real property under Section 1031 of the Internal Revenue Code or any other provision of the Internal Revenue Code that allows for exchanges or tax-free exchanges, regardless of whether the exchange also involves the payment of cash or other consideration.
(9) a change in use of the manufactured home community by the existing community owner.".
Section 2. Modified Table of Consanguinity.
Section 3. Amend §7022(a), Title 25 of the Delaware Code by striking subsection (a) in its entirety and by substituting in lieu thereof the following:
"(a) This section governs the sale, conveyance, or transfer of title of a manufactured home which the buyer or transferee intends to retain in the manufactured home community. This section further extends to the landlord the right to purchase any manufactured home in the community for 1% higher than the contract price at which the tenant has agreed to sell the home to a third party.".
Section 4. Amend §7022(c), Title 25 of the Delaware Code by striking subsection (c) in its entirety and by substituting in lieu thereof the following:
"(c) A tenant who owns a manufactured home in a manufactured home community, and plans to sell, convey, or transfer title to the home to a buyer or transferee who intends to retain the home in the manufactured home community, must notify the landlord in writing 3 weeks prior to the scheduled sale, conveyance, or transfer of title of the manufactured home and the transfer of the lot rental agreement, giving the name and address of the prospective buyer or transferee, along with a written statement or a proposed bill of sale clearly indicating the agreed sale price and terms. Failure on the part of a tenant to so notify the landlord is grounds for termination by the landlord of the tenant and landlord’s rental agreement.
(1) The landlord has the right to purchase the home at a price of 1% higher than the contract price and under the same terms at which the tenant has agreed to sell the home to a third party.
(2) If the landlord wishes to purchase the home at 1% higher than the contract price and under the same terms at which the tenant has agreed to sell the home to a third party, the tenant must sell the home to the landlord.
(3) Upon receipt of the name and address of the prospective buyer or transferee and the agreed sale price and terms, the landlord shall notify the tenant in writing within 5 business days that the landlord is exercising the right to purchase the home. If the landlord does not notify the tenant in writing pursuant to §7024 of this title within 5 business days that the landlord is exercising the right to purchase the home, the right of the landlord to purchase the home expires.
(4) The landlord’s notice must be sent to the tenant pursuant to §7024 of this title. The notice must clearly state that the price and terms are acceptable, and must set a settlement date within 14 days.
(5) The right of the landlord to purchase a tenant’s home does not extend to the following circumstances:
(A) a bank, mortgage company, or any other mortgagee has foreclosed on the home;
(B) the sale, transfer, or conveyance of the home is to a family member of the home owner or to a trust, the beneficiaries of which are family members of the home owner on the modified Table of Consanguinity; or the sale, transfer, or conveyance is to a family member of the home owner on the modified Table of Consanguinity who is included within the line of intestate succession if the home owner dies intestate;
(C) the sale, transfer, or conveyance of the home is between joint tenants or tenants-in-common;
(D) the transfer or conveyance is by gift, devise, or operation of law.
(6) A landlord may not engage in any act or activity with the intention of placing undue influence or undue pressure on a tenant to sell the tenant’s home to the landlord.
(A) A tenant may file an action in a court of competent jurisdiction for actual damages sustained when the tenant reasonably believes that the landlord willfully:
(i) exerted undue influence or undue pressure on the tenant to sell the tenant's home to the landlord; or
(ii) exerted undue influence or undue pressure on a former tenant which resulted in the sale of the former tenant's home to the landlord; or
(iii) did not evaluate the home in a reasonable and fair manner when applying written standards for resale or transfer of the manufactured home in the community, pursuant to §7020(c).
(B) It is an affirmative defense to a claim that a landlord engaged in an act or activity with the intention of placing undue influence or undue pressure on a tenant or former tenant by initiating a rent increase, if the landlord provides proof that the increased rent is within the range of market lot rents.
(C) If a court of competent jurisdiction finds that a landlord has willfully engaged in any of the acts enumerated in subparagraph (A) of this paragraph, the landlord is liable to the tenant or former tenant for three times the actual damages sustained as a result of the landlord's acts and reasonable court costs.
(D) If a court of competent jurisdiction finds that a landlord has willfully engaged in an act or activity with the intention of placing undue influence or undue pressure on a current or former tenant in order to purchase the current or former tenant’s home, the landlord may not exercise his or her right to buy any tenant’s home for 365 days. Each offense is subject to a 365-day penalty.".
Section 5. This Act does not affect a right of first offer or right of first refusal or any remedy entered into prior to the effective date of this Act.