As an attorney, one thing that I have always said is that the worst job in the world is board member of your condominium association or HOA. I have a few friends and clients who take on this thankless task.  One of our firm attorneys is a former HOA board member of his community and has moved up to his community’s Community Development District.  My secretary of over 25 years, who sees this first hand on a daily basis, is secretary of her own condo board.  She knows better!  My father, who is an elected city commissioner (which is another story in and of itself) has simultaneously (though not currently) been president of his condo association.  He has convinced my mother to serve on the condo board while he sits out for a few years.  Crazy!

Me, not a chance! We have lived in our community of 1500 homes for over 22 years.  We pay our assessments and keep our property clean and follow the rules.  The HOA does a great job and, in the time we have lived here, our assessments have remained steady, going up an average of about $3 per month each year.  You can imagine my surprise, shock even, when I received the annual budget a few weeks ago and the notice or our assessment for 2018.  The increase was $29 per month, a 16% increase.  The board explained that $25 of the increase is directly related to Hurricane Irma repairs and will be for 2 years only.

The explanation seemed reasonable and I have to trust the judgment of the board since I have no desire to be involved in the process. However, I can imagine the heat that board members are taking over this decision.  I am sure they are being bombarded by calls and emails as well as unpleasant conversations with neighbors while walking their dogs or shopping at Publix.  (Note that I have no idea who our board members are so none would hear from me if I were moved to object).

The real estate attorney in me does question why a $600 assessment ($25 x 24 months) is necessary following Hurricane Irma. My knowledge of the community damage is obviously limited to what I have observed walking and driving through the neighborhood.  To me, the damage seems less extensive than following Hurricane Wilma 11 years ago.  We seemed to have fewer trees down this time.  Perhaps sidewalk damage was more extensive this time (from uprooted trees), but the HOA has a sidewalk repair line item in the budget as our trees continue to mature and roots damage the sidewalks.  But the year following Wilma, our assessments did not increase outside of the normal range.

What about insurance and reserves? Did the board reduce our coverage and resources so that the HOA was more exposed following Irma than we were following Wilma?

There are countless other questions that I could ask. But if I ask, someone might push me to get involved.  And that brings me back to the beginning.  There is no job worse than HOA/Condo board member.  Therefore, I will continue to pay my assessments and let someone else have the job, thank you.

At the end of every year, every one has a Top 10 list. As 2017 ends and we begin 2018, Florida Real Estate Law and Investment Blog is pleased to present its first ever Top 10.  This is my own Top 10 list of my favorite posts from 2017.  It is not based on number of hits or any other qualitative data that I received over the year.  Rather, it is my own list of favorite postings, the ones that I most enjoyed writing and the ones that I think might have the most impact or meaning.  I did receive a lot of positive feed back on many of these posts and, if you haven’t read them, I encourage you to do so.  They are worth a re-read.  I’d love your thoughts this time around.  Looking forward to 2018!

#10 – Proper Zoning Determines Property Value – Posted March 7, 2017. A simple discussion about the correlation between a property’s zoning and the value of the property and how knowing the zoning prior to entering a contract can help in negotiations.

#9 – Renewal Option Language Often Overlooked – Posted July 24, 2017. Lease renewal option language is important for tenants in planning for the future.  It should not be overlooked when negotiating the original lease.

#8 – Offset Language Puts Lender’s Hands in the Cookie Jar – Posted May 22, 2017. I liked this post because it told a good story about a good client to work for, the Girl Scouts.  We had a problem with the loan documents that could adversely affect thousands of girls and their cookie money which no one intended or wanted – and we solved it.

#7 – Could the Grenfell Tower Disaster Happen in the United States? – Posted July 3, 2017. After the fire, many of us wondered how something like this could ever happen and whether it could happen in the US.  The post looked at US building and fire codes in the projects.  Despite our laws and codes, are we protected?  As I am finishing this post, a tragic apartment fire killed 12 people in the Bronx.  The investigation is just beginning, but I think the answer is that we are not fully protected in older buildings.

#6 – 6 Protections for Real Estate Partnerships – Posted July 31, 2017. We talk about real estate every day.  This post outlines some of the protections that should be included when we form entities with partners to invest in real estate.

#5 – US Withdrawal From Paris Climate Accord Met With Resistance From Local Leaders – Posted June 15, 2017. I have blogged many times about climate change and sea level rise and will continue to do so.  This is a particularly important topic to us in South Florida.  South Florida leaders in particular reacted to the news when President Trump announced the US was withdrawing from the Paris Accord.  South Florida will continue to abide by the Accord as it battles rising seas and climate change.

#4 – House Flipper’s Attempted Purchase Exploits Elderly Woman – Posted December 18, 2017. Posted just a few weeks ago, this article has touched a nerve with many of my friends and colleagues.  We see and read so much about exploitation of the elderly, and this post talks about how the real estate industry is also involved.  Beware.

#3 – Riding Out Hurricane Irma – Posted September 18, 2017. This was the single biggest news event in South Florida in 2017. We were fortunate, compared to the people on the west coast and those in Houston and Puerto Rico and elsewhere in the Caribbean.  Nevertheless, we had our story to tell.

#2 – Smart Houses Make Me Feel Dumb – Or At Least Unsafe – Posted October 30, 2017. Amazon Key was the inspiration for this post, but it encompassed all the products that make your house “smart”.  How secure are these products?  I expressed fear about a loss of privacy, not to mention trepidation about Amazon’s physical access to your house.  A few weeks ago, there were news reports of the first hacks into Amazon Key.

#1 – Email Scam/Wire Fraud Hits Close to Home – Posted July 10, 2017. This post has probably generated the most attention.  Hopefully, everyone in real estate will be more diligent and we can stop the fraud and the scammers.  I should put a note on my calendar to re-post this at least once a year as a reminder.

Happy New Year everyone!

I recently came across a blog by Camile Baptiste titled 3 Advantages of Buying Bank Owned Property (REO) (see Camile’s Blog HERE). I tweeted it out and said that it is totally false (follow me @dkblattneratty).  Maybe it isn’t totally false, but there are numerous reasons not to buy REO property.  Banks, as sellers, are extremely difficult to deal with.  Let me briefly enumerate my observations.

  1. Banks typically attach a multi-page addendum to the standard from contract used in a locale. The addendum, of course, disclaims any liability for anything that could possibly be wrong with the property. OK, “AS IS” is “AS IS”.  But the addendum changes customary contract provisions including times for inspections, responsibility for closing costs and rights regarding title.

 

The title issue can be a big one. In most areas in Florida, the buyer selects the title agent.  Banks, following foreclosure, like to control title.  In a recent REO transaction I handled for a buyer, the bank’s title company provided the title commitment and set the closing date.  However, the title commitment showed that the foreclosure was not complete and a subordinate lender was not properly foreclosed.  Therefore, the property had to be re-foreclosed.  Because we couldn’t control the process, it was difficult to first convince the title company and then the bank that re-foreclosure was required.  They wanted us to close!  Then, we had no ability to coordinate with the bank to assure that the case was progressing and the re-foreclosure took over 18 months.

  1. Banks don’t negotiate – anything. Their form is their form.  The deal is the deal.  If there is a problem later, they don’t negotiate.  During the same transaction, while waiting for the re-foreclosure, Hurricane Irma hit South Florida.  Though the contract was “AS-IS”, it also provided that seller shall maintain the property and deliver it in the same condition as of the Effective Date.  Additionally, there was a casualty/risk of loss paragraph.  Hurricanes were covered under this paragraph and seller had an obligation to spend up to 1.5% of the purchase price to repair damages, including removal of debris and trimming of trees following a casualty.  Of course, there was extensive damage and the purchase price was just under $1,000,000.  The bank did almost no clean up or repair.  The roof was severely damaged and had extensive leaks, yet the bank didn’t even put a tarp on the roof to stop the growing water and mold damage to the interior.  The pool pump became inoperable creating a green cest-pool.  A horse stable on the property was demolished and not cleared or re-built.  Fences were missing and trees uprooted.  Notwithstanding, the bank only agreed to a closing credit of only $10,000.

 

  1. Banks don’t close or make decisions as quickly as advertised. When a contract is submitted or a decision is required, the real estate agent will tell a buyer that the bank will respond immediately.  That is never the case as approval is not obtained locally.  An out of town asset manager makes the decision.  The asset manager has dozens of files on his/her desk and responds when he/she can, regardless of contractual deadline.  If buyer’s lender requires information or a signature, the asset manager doesn’t move any more quickly.  There is no “professional courtesy” afforded from the selling bank to the new lender.

 

  1. REO property is always in worse condition than advertised or than you observe. The foreclosed owner didn’t care for it and in fact, purposefully damaged it on the way out.  Bank will do the absolute minimum to maintain it while it owns it and will do nothing to repair it.  They hire local property managers or real estate agents to do these things and the local managers/agents spend as little as possible to maximize their profits under their contracts.

 

  1. Anti-flip provisions in REO sale contracts limit buyers. A large percentage of buyers of REO properties are flippers.  Many REO sale contracts restrict the buyer’s ability to flip.  These restrictions range from 60-180 days.

 

  1. Banks and asset managers are usually located out of state and therefore, unfamiliar with local law and custom. This causes additional delay and confusion.

These are but a few of the difficulties in buying REO property. Though the price is often attractive, these and other difficulties can cause a buyer time, money and lost opportunities which might offset the favorable up front pricing.  Think more than once before buying from an REO.

Residential real estate closings cause all kinds of challenges. Whether you are working with the buyer or the seller, every step in the closing process can be emotionally draining.  The client so often feels wronged by the other side and wants to strike back.  I often feel as if I am working as a therapist, helping my clients cope with the latest obstacle to closing.

One of the biggest obstacles to overcome is when damage to the property between the contract Effective Date and the Closing Date occurs. Who is responsible for the damage?  Fortunately, this does not happen often and when it does, the damage is usually minor.  But, sometimes, there is major damage, like recently, following Hurricane Irma.  Or worse, when the seller does nothing to maintain the property and lets it deteriorate significantly, the issue is very contentious.  The answer of responsibility should be clear in the contract.  Unfortunately, the FAR/BAR contracts that are often used, don’t provide adequate answers for either the Buyer or the Seller.

The 4/17 revisions of the FAR/BAR Residential Contract for Sale and Purchase (“Standard Contract”) and the AS-IS Residential Contract for Sale and Purchase (“As-Is Contract”) both have weak and somewhat contradictory provisions that neither seller or buyer should love. Paragraph 11 of both contracts, Property Maintenance, provides: “Except for ordinary wear and tear and Casualty Loss [and those repairs, replacements or treatments required to be made by this Contract,] Seller shall maintain the Property, including, but not limited to lawn, shrubbery, and pool, in the condition existing as of the Effective Date (“Maintenance Requirement”).  (Bracketed language is in Standard Contract only).  This language would require the Seller to continue to maintain the Property until closing, allowing only for “ordinary wear and tear”.  At closing, Seller would have to restore the Property back to its condition as of the date of the contract.

In a short contract period, this likely would be easy to determine. In a longer contract period, how could this ever be determined?  More importantly, what happens where the condition of a major component, such as the roof or air conditioning, is nearing failure as of the Effective Date, and, ultimately fails prior to closing.  Forget, the Standard Contract for a moment where the Seller might have some repair obligations for this, but assume the AS IS Contract where the Buyer would be taking AS IS.  Paragraph 11 seems to suggest that if the roof or air conditioning were in fact to fail, prior to closing, Seller would be obligated to restore them back to the condition they were in on the Effective Date.  The condition then was near failure but not quite failing.  Why would any contractor do that and how could it be determined what that point was and whether it was reached upon the restoration?  It would clearly be a waste of money to do so as buyer would likely have to make the replacement in the near future any way.

Is there a solution? Contractually, the language should be changed to specifically eliminate Seller’s maintenance obligation for items at the end of their useful life and eliminate them.  Make the Seller’s obligation to maintain but, at closing, Buyer takes those items, AS IS.

The FAR/BAR Contracts both have a Risk of Loss provision. The Standard Contract provision can  be found in standard R and the AS IS Contract provision can be found in standard M.  The provisions are the same.  They provide that if there is damage caused by fire or other casualty and the cost of restoration (including pruning and removing damaged trees), does not exceed 1.5% of the Purchase Price, the cost of restoration shall be an obligation of seller and closing shall proceed.  If the cost of restoration exceeds 1.5%, Buyer may decide to terminate or may close and take a credit from Seller in the amount of 1.5%.

Do the Maintenance and Risk of Loss provisions create an ambiguity? Clearly, after a casualty, the Property will not be in the same condition as it was on the Effective Date.  But, the Risk of Loss provision would seem to limit Seller’s liability to 1.5% of the purchase price because the provision is qualified to damage to the property caused by fire or other Casualty.  However, I still think there is some ambiguity here because some of the maintenance obligations that were neglected might have been exasperated by the casualty.  I have a personal example following Hurricane Irma.  My buyer client signed an AS Contract with an REO seller.  Because of a significant title defect, the closing has been delayed for over a year.  The client did an inspection upon signing the contract and knew that the roof was nearing the end of its useful life, but the report said that except for a couple of small leaks, the roof should last another 3-4 years.  There were other similar items in the report.  For example, the kitchen cabinetry needed about $4,000 worth of repairs.

Following Hurricane Irma, the roof is in total failure and there is significant water damage in the house. The client obtained a new inspection report of the house.  And, as an example, the kitchen cabinetry needs to be totally replaced at an estimated cost of $30,000.  Is the cabinetry damage due to the hurricane and thus covered by the Risk of Loss paragraph or is the damage due to excessive wear and tear due to the leaky roof getting worse?  And, is the fact that the roof condition went from 3-4 years life expectancy to total failure a casualty or not properly maintained?  There are numerous issues like this that we are faced with in this contract and the fact that it is REO has only made the situation harder.  Had the contract specifically excluded the roof and any interior damage caused by the on-going leaks from the Maintenance paragraph, we would have very few issues and likely only be discussing which trees need to be removed and which need to be pruned.  Instead, we continue to debate whether the bank will do any work or provide any credit for repairs.

To be honest, I had not thought much about the Maintenance paragraph before this closing. Until this one, even when the property was vacant, maintenance issues were usually pretty minor.  Certainly casualty issues arise from time to time, particularly in hurricane season.  But most buyers know what they are getting and what to expect when they are buying damaged or REO properties.  Maintenance prior to closing is not going to be an issue.  It should be.  Not just because this deal has given me and my client more grief than we need (the title issues and corresponding delays gave us more than our share to be sure).  But because the price a buyer offers on a property, commercial or residential, should reflect what the buyer is going to spend after closing to ready the property for occupancy.  If the property is not properly maintained, these costs go up.  In a residential setting in particular, the difference of a few thousand dollars can set a budget way out of whack.

It is important then, to consider the Maintenance paragraph, in particular, and also the Risk of Loss Paragraph in the FAR/BAR Contracts. Determine what is going to be important to your client, buyer or seller, and make the appropriate adjustments.

Sometimes, when you think you’ve won, you’ve really lost. In my most recent case, I was very successful in working out a bad lease for a client.  Prior to coming to me, the client had been through several rent deferments.  The deferments had come due and the landlord was unwilling to give any further accommodations.  After months of negotiation, the tenant thought she had the parameters of a lease extension.  But, there were numerous open issues and financial terms to address.

After discussing the client’s financial position, I was able to negotiate a write-off of the deferred rent, over $300,000, and a tenant improvement allowance to modernize the space in exchange for only a 3 year extension of the lease and a slower increase in the rent. Only the TI would be guaranteed.  These negotiations took over 2 months.  We determined that the tenant did have an A/R balance of under $20,000 which would have to be paid as a condition of the new lease.  The client assured that the could make this payment and could fund any tenant improvements in excess of the TI allowance.  The tenant signed the new lease in early September.  We all felt like this was a win – the landlord, tenant and I.

After Hurricane Irma, I called to check on the client to make sure everything was ok as I had not received the fully executed lease back from the landlord. She complained that the landlord was stalling on signing the lease and therefore, she couldn’t start the TI.  Before I volunteered to check on this, I probed.  She complained that business loss was significant due to the hurricane and its aftermath and she was not able to make the promised payment and that landlord was being unreasonable, refusing to work with her.  Alarms started going off all around me.  This money should have been available before the hurricane at the time the lease was signed.  She started pointing fingers at everyone again – the landlord, the property manager, her partner, FPL, me.  Clearly, the issue was, is and always has been the tenant’s inability to pay the rent and other obligations prior to and since the execution of the modification.

What appeared to be a big, hard fought win looks to be turning into a loss. Could this have been avoided?  I don’t think so because the tenant, the client, has not been honest.  Mostly, she has not been honest with herself about what she could and could not afford.  But she also wasn’t honest with me and therefore, I could not properly advise her or handle the negotiations.  Expectations were set based on false premises and when we thought we had a win, we really lost.  Any bargaining position we might have had was lost as soon as she signed the lease.  If the tenant did not have the financial wherewithal to meet its obligations, either under the prior lease terms or under the renegotiated lease terms, she should have never signed the new lease.  As a result, we have lost the thrill of victory and now feel the agony of defeat.

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