Monday marked the fourth straight day in Ohio of sunny skies and temperatures in the 80s. That’s quite remarkable given that we are just five weeks into spring and the summer solstice is almost two months off. The unusually hot weather was almost nice enough to make one think of being on a
Best Lawyers in America® has named Bill a “Lawyer of the Year” for two consecutive years – 2015 Cleveland Real Estate Litigation Lawyer of the Year and 2014 Cleveland Construction Lawyer of the Year. He represents private and publicly held property owners, contractors and developers, and governmental entities. His expertise includes real estate development, affordable housing, leasing, construction law, distressed real estate matters, property taxation and abatement. In the corporate area, he concentrates on corporate governance issues and general business counseling. Bill's litigation practice focuses on property ownership disputes, leasing matters, title insurance litigation, bankruptcy litigation, and construction claims. With over 30 years of experience, Bill has achieved the highest ranking, AV Preeminent, from Martindale-Hubbell, is recognized by Chambers USA and the American College of Real Estate Lawyers, and is also named to Ohio Super Lawyers and Best Lawyers in America®.
It was reported this week in Crain’s Cleveland Business that the Blue Heron Golf Club in Medina County is for sale. The golf course, only four years old and ranked in 2006 as one of the best new courses in the country, is surrounded by a residential development consisting of more than 400 home sites.
According to Crain’s, the broker for Blue Heron does not believe the fact that the course is on the market will negatively impact the sale of lots in the surrounding development. He is most likely correct. The general state of the economy is doing that job just fine on its own, thank you very much.
Residential developers and new home builders have been two players in the market hit hardest by the current credit crisis and rising unemployment.
Data just released today (April 16) by the U.S. Census Bureau and HUD estimates single family building permits issued nationally in March 2009 were down 7.4% from the revised February figures, and down 42% from one year ago. Estimates for February had been up slightly over those for January 2009.
While March housing starts are estimated to be unchanged from those in February 2009, they were down a whopping 49.6% from March 2008 national levels. Total single family units under construction, both nationally and in the Midwest, have declined each of the last 12 months.
While sale rumors – – now confirmed – – may not have hurt new home sales in the adjoining subdivisions, the sale of the Blue Heron course cannot help unless the sale is to another operator intent on maintaining the property as a golf facility. That issue can turn on what is or is not required by title covenants, documents which are often ignored by home buyers.
Park use is one alternative which could complement neighboring residential development. The 2007 sale of Orchard Hills Golf Course to the Geauga Park District is a prime example of a golf course being converted to a use that successfully preserves the green spaces and recreational aspects of the property.
On November 26, 2008, LandAmerica Financial Group, Inc. (“LandAmerica”) and its affiliate, LandAmerica 1031 Exchange Services, Inc. (“LES”) filed for Chapter 11 protection from creditors. LES abruptly ceased its 1031 exchange intermediary business two days prior to the bankruptcy filing and LandAmerica sold its Lawyers Title and Commonwealth Title underwriting subsidiaries to Fidelity Title and Chicago Title shortly after the petition date.
Monday, April 6, was the deadline for creditors in each case to file their bankruptcy claims. A review of the filed claims in each case tells quite a tale of woe, with the 1031 exchange customers of LES hit exponentially hard.
As a 1031 intermediary, LES held proceeds from the sale of its customer’s “relinquished property” for 180 days or until “replacement property” was purchased if earlier. For an extended period, LES had been investing its customer’s sales proceeds in auction rate securities (“ARS”), the market for which froze in February 2008. By November, LandAmerica could no longer fund the cash needs for replacement property purchases and this led to the Chapter 11 filing.
Customers who were in the middle of their 180-day replacement period awoke to find that their cash proceeds were not only unavailable (and likely tied up long term in illiquid investments) but that they would not be able to obtain their planned tax deferral under Section 1031 of the Revenue Code. If that was not injury enough, many of these customers already had replacement properties firmly under contract and suffered the insult of potential breach lawsuits by the sellers of those properties.
One LES creditor’s claim is reflective of the many similarly situated customers. Deblu Realty Corporation had almost $1.5 million deposited with LES from the sale of relinquished property, but its proof of claim was not only for that amount but for $373,000 in lost deferral of taxes (at capital gains rates), $3.7 million in potential lost profits on the thwarted acquisition of replacement property as well as yet to be determined amounts for alternate financing costs and legal fees.
"Every night before I rest my head; See those dollar bills go swirling ’round my bed."
So sang Patti Smith in the composition Free Money on her critically acclaimed 1975 debut album, Horses.
That’s a tune that cash-desperate real estate developers and project owners may have found themselves humming during the current credit crisis. But…