State of New Hampshire Banking Department 59 Regional Drive, Suite 200, Concord, New Hampshire 03301 RONALD A. WILBUR ‘Telephone: (603) 271-3562 BANK COMMISSIONER, FAX: (608) 271-1090 or (605) 271-0750 GLENN A PERLOW. DEPUTY BANK COMMISSIONER Mr. Scott F, Eaton Administrative Rules Director Office of Legislative Services 25 Capito) Street, Room 219 Concord, NH 03301-6312 RE: Declaratory Ruling document #9905 (effective April 14, 2011) Dear Mr. Eaton, It has come to our attention that the above-referenced dectaratory ruling, issued by our department in 2011, contains several scrivener’s errors. We are submitting the amendments contained herein to correct the errors and clarify the record. These amendments are not intended to affect the interpretive analysis or the ruling in the matter. ‘The amendments are all contained in paragraph 3 of the “Discussion” section of the ruling as folloves: 1) The second sentence ends after the word “requirement.” A period should be added. 2) The word “time” immediately following the second sentence should be deleted. 3) The sentence fragment “This does not prevent or obstae...” should be deleted 4) The word “OR” that appears in capital letters should be deleted. For reference, here is a “redlined” version of that paragraph Petitioner was not a full time resident, however, the statute does not require it. I find the length of residency and repeated use through out the years to meet the residence requirement, time-Petitioner has not resided at Tract I for a couple of years. The Internal Revenue Service requires residency of 2 years within the last 5 years as of the date of sale of the home being sold. (Test | Schedule D Instructions for Capital Gains and Losses). This does-nol-prevent-or-obstae---Accordingly, the facts in this petition ‘meet the requirements of 387-A:4, IV and Petitioner is exempt from licensure, OR-Petitioner resided in the premises, and therefore I find the dwelling satisfies the exemption under RSA 397-A:4, VI Please append this clarifying letter to Document #9905 as part of the official record, (24200 Date Ronald A. Wilbur Bank Commissioner ‘ec: Thomas F. Quinn, Esq ‘TOD Access Relay NH 1-800-798-2668IN THE MATTER OF THE PETITION “J, DOK” ¥OR A DECLARATORY RULING (Redacted) Document # 9905 issued by Administrative Rules Effective as of Date Signed. This declaratory ruling is issued to the Petitioner with respect fo the particular cireumstances and facts discussed herein and represents « holding of the department on those circumstances and facts for this Petitioner only pursuant to RSA S41-A:1, IV and RSA $41-A:16, H(b). Facts: ‘The Petitioner's redacted Declaratory Ruling request which provides the questions before the department, the facts in this ease, and the statutes at issue are attached and is incorporated by reference. Issue sumn Ruling is whether the exemption provided in RSA 397-A: 4, dence is available (o a seller offering seller financing, n of the year as descried more fully below. The issue to be addressed by 1 IV. for seller finaneing of the seller’s r for a scasonal home used as a residence for a por Discussion: Petitioner wishes to offer seller financing to a purchaser of Tract I and Traet II whieh will be secured by a mortgage ov Tract I and Tract Il. The real estate in question consists of two parcels The first parcel is located with a dwelling on it that the Petitioner used as a residence for the spring season through the end of the fall season for nine or ten years, ending two years ago due to the death of the Petitioner's spouse. (“Tract I”). The second parcel is located with a boat house and parking lot, (“Pract IP") As to Tract I, RSA 397-A: 4, TV states “the provisions of 397-A shall not apply to an individual who offers or negotiates terms of residential mortgage loan secured by a dwelling that served as the individual’ residence.” Tract I has a dwelling on it. Petitioner states that the dwelling was used as a second home and she resided at the premises from the spring season through the end of the fall scason for a number of years. Petitioner was not a fulltime resident, however, the statute does not require it, I find the length of residency and repeated use through out the years to meet the residence requirement time Petitioner has not resided at Tract | for a couple of years, The Internal Revenue Service requiresresidency of 2 years within the last 5 years as of the date of sale of the home being sold. (Test 1 Schedule D Instructions for Capital Gains and Losses). ‘This does not prevent or obstae. Accordingly, the facts in this petition meet the requirements of 397-A:4, IV and Petitioner is exempt fiom licensure. OR Petitioner resided in the premises, and therefore I find the dwelling satisfies the exemption under RSA 397-A:4, TV Asto Tract Il, there is no dwelling, and no intent to construct a dwelling, therefore, if does not meet the definition of real property or residential real estate in RSA 397-A:1. RSA 397-A:2 provides for the regulation of “persons in the business of offering ...... mortgage Joans secured by real property located in the State of New Hampshire.” As Tract II does not meet the definition of “real property” for the purpose of RSA 397-A, it is outside the scope of the Banking Department’s regulation and no license is necessary to offer financing which is secured by it. Therefore, Tract I not subject to RSA 397-A. There is no residential structure in which to reside on ‘Tract II and therefore no dwelling as defined in RSA 397-A:1, VI-e. Ruling: Based on the facts represented by the Petitioner and the statutes discussed above, the Department makes the following ruling: As to Tract |, the transaction meets the exemption provided for in RSA 397-A:4. As to Tract II, such non-residential property is, by definition, outside the jurisdiction of RSA. 397-A and therefore no license is required to provide seller financing for that tract April 14,2011 AsiRobert A. Fleury Date Robert A. Fleury Deputy Commissioner New Hampshire Banking Departmenta = LAW OFFICE OF ‘THOMAS F. QUINN PROF, CORP. YH: 63-4637.1098 198 Reaten04 FAX: OBATLSSSS ‘eatord, NL 03219 BniAibatynangirgatecen, suly 15,2010 i | i Via Becsinilo to 771-1090 and Rexulor Mii Celia Leonard, General Counsel Nw Hampshire Banking Department 33 Regionel Drive ‘Concord, NH 03301 | Re: _ Seller Financing / Second Home / RSA 397-A, Dear Attomey Leonare, loos be avised that represen lative othe sale of BP propesty a ew Mampshire. Cam writing to seek yggr advice on tye applicability of RSA 297-A, an certain exemptions contained therein, to omstances, “Enclosed herewith please find a copy of the following items: Pucohcag gd Sele Area bot: la I 2 ith Addendum A&B | Pant | { { As you can see, the property consists of two parccls, namely a parcel oa the island, The shoreftont property is improved with « parkivg area and Boat aouse and serves as snocoss fo the istand. The island is improved with a seasonal camp constructed in 1880. F purchased the property in 3 sperty and in Florida about equally. Dusing their ownership of properly, ‘ma! 1e property as a second home, coming up from the home in Florida in the Spring and residing at the promises through the end of the fell season. This was th case for approximately nine or ten years. passed away ronghiy@g@ years ago, and vas not been able to make the same use of the property. [gil now'desites to sell Because it Yack a traditionai heating system, a well and insulatioa, the property is classified as 2 ‘seasonal use sroperty. RSA 397-A is silent on wether seasonalproperties are dwellings, residences, residential real estate or real property. So itis not clear to ine thatthe tate applies to this situation. On the other hag, if seasonal properties are subject to the Actas residential property, it seems fo me th AMAA lifes for the exeroption contained in RSA 397-A:4 iv. [tis important t that be able to close on the transaction and provide seller financing. Due to the physical characteristics of the property, it will be very diflicall, if not impossible, for e purchaser to obtain mortgage financing through conventional channels. Previous altompts to oblain financing have been unsuccessful. applicability of the statute and the specific exemption outlined in section 4 iv. Please feel ftoe to contact me with any questions you may have, Sincerely yours, “Thomas F. Quin ‘TRE x Bnclgsuek aie BY As, eo * a. Trvould appreciate it if you would review this matter and respond with an opinion on the gonoral Ias ; Adbentin B | THIS IS NOT A SURVEY, FOR SITE ASSESSKENT PURPOSES ONLY WOODEN pack OPEN WATER (Typ ) OPEN WaTER (yp. 2 “(SLAND), wore: WERE ARE NO gC | ® Bs (0 oF 2080 wseconon 200 aenre fugiocinie connie ot cooor Soler TEI} i Repo Bras ASgoCIATES PLLC Seon PORTANOLTH. Aa