Thursday, July 7, 2016
Edward W. De Barbieri (Brooklyn Law School) has posted Do Community Benefits Agreements Benefit Communities? (Cardozo Law Review) on SSRN. Here's the abstract:
Community Benefits Agreement (CBA) campaigns and public discussions about community benefits are becoming the norm in deciding how large urban projects are built outside of formal public land use approvals. CBAs have revolutionized land use approvals for large, public-private economic development projects: now developers and coalitions representing low-income communities can settle their disputes before formal project approval. As a result, CBAs are now commonplace nationwide.
Legal scholarship, however, has failed to keep up with these important developments. This Article aims to do just that by examining how CBAs, when properly negotiated, lower transaction costs, enhance civic participation, and protect taxpayers. It argues that CBAs achieve all these outcomes well, and more efficiently than existing government processes. Indeed, this Article’s central argument is that to the extent that scholars have analyzed CBAs, their analyses have gone astray by either dismissing CBAs as harmful to communities or by focusing on the role of the state in negotiating what really should be a private contract between a coalition of community groups and a developer. It is a mistake to give the state’s role in CBAs primacy over the community coalition because the inclusion of government in the CBA bargaining process creates a host of constitutional protections for developers — namely that the community benefits must be connected to and proportional with the instant government approval.
This Article places focus back on CBAs as private contracts enforceable by inclusive and representative community coalitions. It presents a case study of a successful CBA negotiated for the development of the Kingsbridge National Ice Center in the Bronx. This Article proposes a framework for assessing the impact of CBAs in economic development — one that recognizes the nuanced role that states and municipalities play in the formation and enforcement of CBAs. The framework focuses on the extent to which CBAs (1) lower transaction costs by effectively resolving disputes among developers and community groups, (2) increase civic participation in public processes, (3) protect taxpayers, and (4) avoid government intervention and constitutional protections for developers. This Article concludes with recommendations for the appropriate, limited role of government in CBA negotiations.
Monday, May 2, 2016
Wei Wen (University of New England) has posted How American Common Law Doctrines May Inform Mainland China to Achieve Certainty in Land Sale Contracts (Asian-Pacific Law & Policy) on SSRN. Here's the abstract:
This paper explores one of the most significant problems confronting Mainland China in relation to contract and property law today, which is, whether or not written form is mandatory for land sale contracts. In practice, Chinese courts have delivered contradictory cases in relation to contractual form. Some courts regard the written form as being mandatory and therefore no contractual remedies are available to enforce oral land sale contracts. In contrast, other courts hold the opposite view that oral contracts may still have some degree of contractual effect. This results in uncertainty throughout Mainland China, which may cause injustice and unfairness to claimants and may undermine the authority of the law and the courts. This paper argues that the solution to the problem is to propose a legal reform initiative to articulate that written form is mandatory for land sale contracts. This initiative will end the contradictory cases and ensure claimants are treated equally at law in this particular matter.
In order to support and underpin the legal reform initiative, this paper utilizes American doctrines to enrich the Chinese literature and draws on the American experience (particularly Professor Lon Fuller's and Professor Karl Llewellyn's analysis) in establishing that written form is desirable for land sale contracts in Mainland China. This is through a comparative law approach known as functionalism that examines the similarities and differences of the compared jurisdictions.
Thursday, April 28, 2016
The Transactional Records Access Clearinghouse (TRAC), housed at Syracuse University, is a super helpful organization that I've used for a number of years now. The group issues TracReports that provide free monthly information on, among other things, civil litigation throughout the U.S. federal district courts. One item of interest that the group reports on deals with the number of new foreclosure filings each month. Check out this latest report:
The latest available data from the federal courts show that during March 2016 the government reported 505 new foreclosure civil filings. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is up 12.7 percent over the previous month when the number of civil filings of this type totaled 448. The comparisons of the number of civil filings for foreclosure-related suits are based on case-by-case court records which were compiled and analyzed by TRAC (see Table 1).
When TRAC last reported on this matter, foreclosure lawsuits had declined from a peak reached in May and June of 2012 but seemed to have bottomed out in January 2014. Indeed, as can be seen in Figure 1, the monthly count remained relatively stable from that point until about a year ago. When foreclosure civil filings for March 2016 are compared with those of the same period in the previous year, their number was up by nearly one third, or 32.7 percent. Filings for March 2016 are still substantially lower than they were for the same period five years ago however. Overall, the data show that civil filings of this type are down 25.1 percent from levels reported in March 2011.
Top Ranked Judicial Districts
Relative to population, the volume of civil matters of this type filed in federal district courts during March 2016 was 1.6 per every million persons in the United States. One year ago the relative number of filings was 1.1. Understandably, there is great variation in the per capita number of foreclosure civil filings in each of the nation's ninety-four federal judicial districts. Table 2 ranks the ten districts with the greatest number of foreclosure lawsuits filed per one million population during March 2016.
The District of Nevada — with 15.9 civil filings as compared with 1.6 civil filings per one million people in the United States — was the most active through March 2016. The District of Nevada was ranked first a year ago, while it was ranked fourth five years ago.
The District of Rhode Island ranked second and also ranked second a year ago.
The Southern District of Illinois now ranks third.
Recent entries to the top 10 list were Vermont, the Northern District of Georgia (Atlanta) and the Western District of Kentucky (Louisville), which are ranked seventh, eighth and sixth, respectively.
The federal judicial district which showed the greatest growth in the rate of foreclosure civil filings compared to one year ago — up 700 percent — was the Western District of Kentucky. Compared to five years ago, the district with the largest growth — 239 percent — was the Northern District of Florida.
Sunday, April 24, 2016
Chris Odinet (Southern) has posted The Unfinished Business of Dodd-Frank: Reforming the Mortgage Contract (SMU Law Review) on SSRN. Here's the abstract:
The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners that are less likely than ever before to default. As a result of this and other factors, the standard form residential mortgage contract, with its harsh terms and overreaching provisions, should be reformed. This is necessary not only due to the fact that such terms should no longer be needed since borrowers are better financially positioned than in the past, but also because of a disturbing trend in the past few years where lenders and their third party contractors have abused the powers accorded to them by the mortgage contract — mostly through break-in style foreclosures. This Article argues for a reformation of the Fannie Mae/Freddie Mac standard residential mortgage contract and specifically singles out three common provisions that are ripe for modification or outright removal.
April 24, 2016 in Common Interest Communities, Home and Housing, Law & Economics, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Cases, Recent Scholarship | Permalink | Comments (0)
Sunday, January 31, 2016
This past Friday I had the pleasure of participating in a symposium on Housing for Vulnerable Populations and the Middle Class: Revisiting Housing Rights and Policies in a Time of Expanding Crisis, hosted by the wonderful faculty and law review folks at the University of San Francisco School of Law (and a special hat tip to our very gracious host, Tim Iglesias). The timing of this gathering couldn’t have been better. 2015 was a busy year in the housing world as SCOTUS upheld the validity of the disparate impact theory under the Fair Housing Act and HUD issued its significantly updated regulations on the obligation to affirmatively further fair housing. Moreover, cities and local governments are being looked to more than ever to solve major and seemingly intractable issues around housing, spurring a host of new policies, programs, and initiatives. The impressive participants of the USF symposium (coming from practice, government, non-profit, and the academy) explored these and related issues, including potential solutions to pressing problems of housing. Here’s an overview of what the panelists had to say:
What’s the matter with housing?
Rachel Bratt (Harvard Joint Center) kicked off the day by giving an overview of the nation’s current housing woes. She noted that the increase in income inequality over the last 20 years, combined with disinvestment and misinvestment of public resources, has been at the core of the affordable housing issue. She also described how political spending has played a role in further entrenching existing housing interests (in 2015, $234M was spend on real estate/finance lobbying, second only to healthcare). Bratt also explained the uneven distribution of federal housing benefits to the wealthy and the continued persistence of concentrated racial segregation. Rosie Tighe (Cleveland State-Urban Affairs) followed by describing the particular housing problems facing so-called “shrinking cities” (those places in an intense population-decline). She noted that the issue for these cities has more to do with poor quality affordable housing, rather than quantity. Tighe described the failure of low-income housing tax credits to meet the needs of these locales, and discussed the need for more scattered-site developments in these areas, while recognizing the financing and property management challenges inherent in such developments. Peter Dreier (Occidental-Poli Sci) rounded-out the discussion by pointing out that the current political discussions around the presidential election have focused much on wages and other issues, but not at all on housing. He described some reasons for the absence of attention to this important area, and drew the strong connection between household over-all health and housing.
What’s the matter with our current solutions?
Chris Odinet (Southern) started the discussion by describing some current efforts by states and local governments to deal with the fall-out from the housing crisis and on-going issues of blight and abandoned property. He then explained a number of recent federal court cases and acts taken by the FHFA that have significantly frustrated these efforts and also seriously call into question the ability of states and local governments to be innovative in dealing with issues of housing when federal programs are involved. Michael Allen (Relman, Dane, & Colfax) discussed the Fair Housing Act and the new “affirmatively furthering” regulations. He went into depth on contemporary disagreements between affordable housing advocates (who support more affordable units) and fair housing groups (who support integrated housing, and advocated for a way to reconcile their views under the auspices of these new HUD regulations. John Infrana (Suffolk) followed by describing the types of housing in and changing household composition of many cities. Despite these changing demographics, however, housing has not kept pace. In connection with this, Infranca pointed to the many possibilities that micro-housing and accessory-dwelling units (ADU) provide in the way of meeting this need. He noted that ADUs allow for greater economic diversity and can better align with demographic trends, but noted current legal barriers to them such as occupancy requirements and zoning restrictions. Marcia Rosen and Jessica Cassella (both of the National Housing Law Project)) concluded the panel by discussing the current state of the public housing program in the U.S., noting that there are currently 1.2M units (and ever-declining). She described HUD’s recent efforts to give public housing authorities (PHAs) a financing tool to rehab and rebuild these properties through the Rental Assistance Demonstration Program (RAD). This program essentially allows PHAs to convert their public housing stock into section 8 funded housing, and to combine section 8 with tax credits and other forms of debt and equity financing to fund the project. Cassella stated that although the program has great potential in terms of revamping old and decaying public housing properties, there are draw-backs in the way of transparency and long-term funding stability.
What are some new solutions?
For this final panel, John Emmeus Davis (Burlington Community Development Associates) gave an overview of community land trusts (CLTs)—currently over 280 exist nationwide—and their successes across the country. He noted that these types of entities are usually most successful in communities where there would otherwise be no affordable housing available. He noted the ability of CLTs to empower communities, protect tenants, and provide street-level land reform. Andrea Boyack (Washburn) followed by noting the current lack of rental stock compared to the growing demand across the country. She pointed out that in 2015 over half of the population of the U.S. is renting, with an annual demand of 300K new rental units per year. She followed by describing some current statistical trends in American homeownership and posited a number of ways in which cities and states in particular can seek to achieve solutions to these major housing problems. Lastly, Lisa Alexander (Wisconsin) discussed the the human right to housing, not through the lens of federal law, but rather through the ways in which localities across the country are building legal structures that provide many of the rights associated with a right to housing. She noted that market participation has been important to this process, and she used the “tiny homes for the homeless” movement and community control of vacant land as examples.
You can watch each of these presentations by clicking on the youtube video above. Participants, moderators, and USF Dean John Trasviña (former HUD assistant secretary for fair housing) are pictured below.
January 31, 2016 in Conferences, Home and Housing, Land Use, Landlord-Tenant, Law Reform, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recording and Title Issues, Takings | Permalink | Comments (0)
Friday, August 23, 2013
A poster on the DIRT listserv posted a question yesterday that I am going to give my Real Estate Transactions students this semester. This kind of proposal from a client is not unusual -- I had a longtime real estate developer client and friend propose that I help him with exactly the same scenario. We talked through a few possibilities, I explained all the legal risk to him, and he either dropped it or found another lawyer more eager to help him. Anyway, its (a) very real, (b) fraught with legal and ethical issues, and (c) therefore a great problem for real estate students to debate. Here is the unedited post to DIRT:
I have an opportunistic potential client (PC) with the following situation:
1) PC knows a seller (of improved property) who is willing to take $500k for his property.
2) PC knows a potential buyer who is willing to pay $850k for said property.
3) PC would like to somehow give the seller and buyer what they want while taking the extra $350k off of the potential buyer’s hands.
Saturday, January 26, 2013
Businessweek reports this week that NYC real estate developer Prodigy Network is experimenting with crowdfunding as means of financing real estate development. Rather than investing in a pool of funds that finance many developments, individual investors will purchase shares of a particular development, and be entitled to a share of rents and appreciation. Prodigy used the model successfully in Colombia to develop the nation's tallest skyscraper, but it hasn't been tried in the United States until now. Prodigy intends to use crowdfunding to raise $26M (of about $90M it needs) to buy and improve 84 William Street in Manhattan.
Crowdfunding is all the rage in the start-up world. The mortgage and foreclosure crisis put a serious dent in the availablity of real estate financing in the United States. It will be interesting to see whether the crisis has left a hole in the market that crowdfunding can fill, and whether it will be a durable solution. Any thoughts?
Mark A. Edwards
Monday, December 31, 2012
...if you have $500,000 to invest in a commercial enterprise in a targeted employment area ($1,000,000 in a non-targeted area), and plan to create at least ten permanent full time jobs for qualified US workers, then you may be in luck.
The New York Times has a story about the EB-5 Immigrant Investor visa program today, and the investment that it has spurred in a remote part of Vermont, described by the developer as the "biggest economic development project Vermont has ever seen." Promising to create 10,000 new jobs, the price tag on the construction spree is $865 million.
What's really interesting is how the project got financed. The lead developers are investing $90 million, and they have raised $275 million for the first phase of the project from 550 foreign investors in 60 countries. Phase II will require an additional 1,000 investors willing to invest $550 million. Those investors are seeking a green card through the EB-5 Immigrant Investor program. Around since 1990, the program has been particularly popular with hotel developers since the financial crisis put a crunch of commercial real estate loans in 2008. Developers particularly appreciate that EB-5 investors are focused on more than the profitability of the project. As one observer put it bluntly: “Foreigners are buying visas and are much less concerned about the rate of return they earn on their investment,” said David Loeb, a senior analyst at Robert W. Baird.
Although the program is not limited to investments in real estate, investments in commercial real estate have been a popular mechanism for gaining the EB-5 visa. Companies have sprung up to help vet real estate investments and assist potential investors in navigating the process. For example, one company advertises on its website: "American Life offers secure real estate investments to local and immigrant investors ... You make an investment that also qualifies for an EB-5 immigrant visa and we provide the necessary services and information required to obtain your U.S. green card."
The creative financing employed by the Vermont developers is still fairly unusual, but the program that they are leveraging has been growing rapidly. According to the Times, in 2006 the government issued 802 EB-5 visas. In 2011, it issued 7,818. There is an annual limit of 10,000 EB-5 visas.
So, if you have always wanted a U.S. green card and have an extra $500,000 or $1,000,000 lying around, you probably want to act quickly in 2013 before the EB-5 visas run out.
Wednesday, June 13, 2012
The Wall Street Journal has an interesting piece on the struggle of shopping center owners to backfill former Borders locations, a year after the book seller closed its doors. In Winston-Salem's Thruway Shopping Center, the Borders space is being retooled for Trader Joe's to open in August. While I miss having the book store, I welcome not having to drive to Charlotte for my favorite Trader Joe's items. But as chains which occupy large boxes fail, backfilling those spaces becomes more problematic, particularly at the healthy rents the former tenants paid. For example, the Circuit City location on Hanes Mall Boulevard remains empty, three years after it closed its doors.
Wednesday, February 8, 2012
It seems as though every day for weeks now we've been told a settlement between state attorneys general and fraudulent foreclosers -- by which I mean the largest home mortgage lenders in the country -- is imminent. The banks appear to be balking because they expected the type of suit filed by New York Attorney General Eric Schneiderman to be prohibited under the settlement -- but since Schneiderman is one of the key players in the settlement talks, there seems to have either been a serious misunderstanding or a serious play for leverage by Schneiderman. For an excellent analysis of the negotiations, and of the foreclosure crisis generally, I can't recommend Yves Smith's blog Naked Capitalism highly enough.
One issue that MUST be non-negotiable is the ability of people who were wrongfully foreclosed upon to maintain civil suits against their foreclosers. There is no indication that such suits will be barred under the settlement, but since the negotiations are not transparent we can't know until the settlement is announced. My first year property students have now spent weeks studying the crisis -- in part because I'm hoping to ready these young lawyers-to-be to take up the fight to ensure that foreclosure fraud doesn't pay and that its victims receive restitution. But if the state attorneys general negotiate away the only avenue victims of wrongful foreclosure have for relief, it will be the final injustice in a long, long line of them in this crisis. Not to mention a defeat for the rule of law.
For a very good discussion of how we should assess the settlement, when it is finally arrived at and released to public scrutiny, see this article by Richard Eskow.
Mark A. Edwards
Thursday, December 15, 2011
The LA Times reports that the number of Nevada properties that entered foreclosure fell by 75% in October, even as the rate climbed elsewhere in in the country.
That news, though, did not result from a reversal of fortune in the Nevada housing market. It was spawned by a new Nevada law that plays hardball with companies doing the foreclosing. Assembly Bill 284, which took effect in October, requires those foreclosing on a home to file an affidavit proving they have the right to bring the action — and it increases civil and criminal penalties for using fraudulent documents in a foreclosure.
Monday, September 19, 2011
The New York Times on why people thinking about refinancing their home loans should look into mortgage assignments. "Instead of granting and recording a new loan when a borrower refinances, the assignment process transfers a mortgage to a new lender, which then revises it." The borrower then doesn't have to pay mortgage recording taxes on this amount.
Tuesday, August 30, 2011
The New York Times explores how new limits on federally guaranteed mortgages will have a disparate impact on the housing market in big cities:
On Oct. 1, when the limit on federally guaranteed loans drops to $625,500 from the current level of $729,750, hundreds of buyers in the city and nearby suburbs will either have to come up with larger down payments to stay under the new limit or face the prospect of applying for jumbo loans — anything above $625,500 — which have higher interest rates. . . . “Across the country this is not a big deal,” said David Maundrell, the president of aptsandlofts.com “but in New York, because our prices are where they are, it’s going to be an issue.”
Friday, August 26, 2011
Yesterday the New York Times reported that the Obama administration is considering a plan that would “allow millions of homeowners with government-backed mortgages to refinance them at today’s lower interest rates, about 4 percent.” If it gets the green light, the plan could save homeowners $85 billion a year and inject some needed stimulus into a sluggish economy. Matt Yglesias argues that the scheme makes a lot of sense. Ezra Klein does some digging and explains why the scheme is unlikely to work.
Wednesday, July 13, 2011
One the topic of taxing non-profits, here's an idea from LTVfan, one of our commentators:
I'm heartily in favor of taxing the land under nonprofit buildings; I'd favor exempting the buildings themselves from taxation. Valuing land well and accurately is relatively easy; valuing buildings, particularly special-purpose buildings like churches, is much more difficult and expensive.
Many downtown churches sit on large pieces of land, bought decades or centuries ago, perhaps with the foresight of land speculators in the lay leadership. Frequently, the land is underused, and currently no mechanism exists to nudge it into more use.
But I encourage you to consider the effects (and costs) of taxing ANY buildings, and submit that we'd be wiser to simply tax land value, and treat buildings and their contents as private property, not subject to taxation. Land value, unlike the value of buildings and personal property, is created by the community, and is thus a logical and just base for taxation.
You might explore Henry George's Single Tax, best laid out in his landmark book, "Progress and Poverty," available online at its dot org.
Monday, July 11, 2011
Andrey Pavlov (Simon Fraser) and Susan Wachter (Penn - Wharton) have posted REITS and Underlying Real Estate Markets: Is There a Link? on SSRN. Here's the abstract:
This paper utilizes the Carlson, Titman, and Tiu (2010) model of REIT returns to estimate the strength of the relationship between REIT and underlying real estate returns. Our work further offers an innovative method for computing the returns of the real estate properties underlying each REIT using the Moody’s/REAL commercial property price indices by region and property type. We find a statistically significant relationship between REIT and real estate returns only in the office sector. Other property types offer only very weak and insignificant relationships. This finding suggests that direct real estate investment or investment through the property price index derivatives cannot be replicated using REITs.
Friday, May 20, 2011
John Pottow (Michigan) has posted Ability to Pay on SSRN. Here's the abstract:
The landmark Dodd-Frank Act of 2010 transforms the landscape of consumer credit in the United States. Many of the changes have been high-profile and accordingly attracted considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau (CFPB). But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as CFPA did get into the law: imposing upon lenders a duty to assure borrowers’ ability to repay. Ensuring a borrower’s ability to repay is not an entirely unprecedented legal concept, to be sure, but its wholesale embrace by Dodd-Frank represents a sea change in U.S. consumer credit market regulation. This article does three things regarding this new duty to assess a consumer’s ability to pay mortgage loans. First, it tracks the multifaceted pedigree of this requirement, looking at fledgling strands in U.S. consumer law as well as other areas such as securities law; it compares too its more robust embrace in foreign systems. Second, it offers conjecture regarding just how this broadly stated principle might be put into practice by the federal regulators. Finally, it provides a brief normative comment, siding with the supporters of this new obligation on lenders.
Thursday, May 19, 2011
Christopher J. Mayer (Columbia Business), Edward R. Morrison (Columbia Law), Tomasz Piskorski (Columbia Business) and Arpit Gupta (Columbia Business) have posted Mortgage Modification and Strategic Behavior: Evidence from a Legal Settlement with Countrywide on SSRN. Here's the abstract:
We investigate whether homeowners respond strategically to news of mortgage modification programs. We exploit plausibly exogenous variation in modification policy induced by U.S. state government lawsuits against Countrywide Financial Corporation, which agreed to offer modifications to seriously delinquent borrowers with subprime mortgages throughout the country. Using a difference-in-difference framework, we find that Countrywide's relative delinquency rate increased thirteen percent per month immediately after the program's announcement. The borrowers whose estimated default rates increased the most in response to the program were those who appear to have been the least likely to default otherwise, including those with substantial liquidity available through credit cards and relatively low combined loan-to-value ratios. These results suggest that strategic behavior should be an important consideration in designing mortgage modification programs.
Thursday, May 5, 2011
Kenneth Harney of the L.A. Times reports that although FHA has raised some fees, it still offers homebuyers many advantages over its private-sector rivals:
The FHA . . . continues to offer much higher and more flexible maximum debt-to-income ratios, far more generous underwriting and lower down payments, and will accept FICO scores that conventional lenders and private insurers won't touch.
Wednesday, April 27, 2011
Bradley Borden (Brooklyn) and Mathews Vattamala (Student-Brooklyn) have posted Series LLCs in Real Estate Transactions (Real Property, Probate, and Trust Law Journal) on SSRN. Here's the abstract:
Series limited liability companies are a fairly new form of business entity. Some observers worry that series limited liability companies are untested and business and property owners should wait to use them. Meanwhile, tax and business law practitioners are moving forward, recommending that their clients take advantage of the opportunities series limited liability companies present. This article reviews the growing popularity of series limited liability companies and the statutory framework of the Delaware series limited liability company statute. It suggests that any hesitancy to use series limited liability companies is unfounded and that they will continue to grow in popularity. The article then discusses the tax classification of series, concluding that recently proposed Treasury regulations provide property and business owners considerable latitude in choosing the tax classification of series. Finally, the article illustrates how property owners may use series limited liability companies to minimize the complexities of ownership and transactional structures.