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- Curtis D Harris, BS, CGREA, REB
Posted: 31 Aug 2009 03:02 AM PDT INVERSE CONDEMNATION
|New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking? |
Posted: 28 Aug 2009 09:38 PM PDT
Posted: 27 Aug 2009 05:15 PM PDT
In a case that's highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine's requirement that hospitals provide free medical services to certain low income patients is not a regulatory taking.
The not-for-profit hospital sought a declaration that Maine's "free care laws" effected a taking because "Maine's free care laws do not reimburse the hospitals for their expenses incurred in delivering care to low income patients, and the amount of free care that the hospitals must provide is not limited under the statute." Slip op. at 2. Maine statutes require hospitals to provide free inpatient and outpatient services to residents who earn at or below 150% of the federal poverty level, upon pain of fines and private enforcement suits by the state attorney general or any affected patient. If a hospital's "economic viability...would be jeopardized by compliance," it may avoid liability if an enforcement action is instituted. The relevant details of the free care laws are:
(1) the laws mandate that a hospital provide free/uncompensated care to persons deemed eligible by the state through a penalty enforcement scheme, (2) the hospital is not reimbursed any amount for the provision of care, [and (3)] the provision of free care is not a license condition or is not linked to the state's certificate of need process.
Slip op. at 4. The hospital spent $890,212 to meet the free care obligations, but this expenditure did not threaten its economic viability.
The District Court granted the state's motion for summary judgment. The Court of Appeals affirmed, holding there was no per se taking and that upon balance, the Penn Central factors cut in the state's favor.
First, the court held the free care laws did not mandate a physical occupation of the hospital's property. The court relied upon Yee v. City of Escondido, 503 U.S. 519, 527-28 (1992), a case rejecting a physical occupation challenge to a mobile home rent control ordinance because the ordinance did not require the mobile home park owner to use her land as a mobile home park. See slip op. at 9 (citing Yee, 503 U.S. at 528). The First Circuit concluded that the free care laws did not require the hospital to allow non-paying patients to occupy its property because the hospital was free to stop using its property as a hospital. The distinction distinction relied upon by the First Circuit is a fine one. Yee noted that a regulation cannot require even a minor physical invasion of property without running afoul of the Takings Clause. Yee, 503 U.S. at 528 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 n.17 (1982)). But when a property owner voluntarily opens her property to occupation, the government can regulate occupancy without it being deemed a per se taking.
Second, the court examined the three Penn Central factors: economic impact of the regulation, the interference with distinct investment-backed expectations, and the character of the government action. Slip op. at 10-15. The highlights of the analysis are the court's conclusion that requiring the hospital to donate its services does not adversely impact the hospital's bottom line. Id. at 11. With scant analysis, the court suggested that because the free care laws do not -- in this instance -- threaten the hospital's economic viability, there is no taking. The court left open the possibility that free care could become so burdensome that compensation would be required:
We do not suggest that there can never be a taking based upon an adverse economic effect short of jeopardizing the economic viability of a plaintiff; we only note that this case is not at that end of the spectrum.
Slip op. at 12. In other words the hospital can afford it, so it loses this Penn Central factor. Also interesting was the court's rejection of the state's argument that the second factor -- investment-backed expectations -- were somehow lessened because the hospital is a not-for-profit organization. A non-profit has property rights, and may acquire property "with the expectation that it may use it for a particular purpose." Slip op. at 13. The court's conclusion on the second Penn Central factor is muddled, however, and seems to indicate (without expressly concluding) that because the hospital operates a highly regulated business, its investment-backed expectations are lower. See id. at 14-15. If there's a conclusion there, we can't find it.
Finally, the third Penn Central factor cut against the hospital because:
Maine's free care laws merely require that hospitals not refuse to treat patients based on their ability to pay and that they provide those services freely to those with incomes at or below 150% of the federal poverty level. [The hospital] may otherwise set the terms on which it provides access to its facilities and services.
Slip op. at 15. The court viewed the regulations as not overly onerous, even though it places nearly the entire burden of treating low income patients on hospitals. While the provision of medical services is undoubtedly a public good, the Takings Clause was designed to keep property owners from being forced to shoulder a disproportionate share of public burdens, if it cannot be shown individually they caused the problem. The Fifth Amendment's protections are "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40 (1960).
Fall 2009 Seminars
BOND BUYER PRE-CONFERENCE
WILL THE AMERICAN RECOVERY AND REINVESTMENT ACT RESUSCITATE THE ECONOMY?
At the start of 2009, California’s economy continued to slow and its municipal finance market functioned poorly. Nor was California alone among the states facing these problems.
In response to federal concerns about the recession and municipal finance market, Congress and the Obama Administration approved a financial package with ambitious goals for spurring economic recovery. The package, entitled the American Recovery and Reinvestment Act (ARRA), created new municipal bond instruments and made temporary changes to tax credit programs.
Congress directed much of the stimulus package to state and local governments, and insisted that they be subject to an unprecedented level of evaluation and assessment for the economic gains associated with the incentives. To what extent are California’s governments using these new tools? Are the new tools making an impact on the state’s economy? What will be the long-term effect?
Speakers discuss the state of the economy, the municipal market and ARRA’s impact on both. Market representatives analyze the programs created by ARRA that make low-cost financing available to state and local governments. Panelists who have issued ARRA-authorized debt talk about their experiences, while identifyinging potential hurdles and advantages of ARRA municipal market programs.
When: September 14, 2009
Where: La Costa Resort & Spa, Carlsbad, California
To review the agenda or to register, visit The Bond Buyer’s website at: The Bond Buyer's 19th Annual California Public Finance Conference
Or visit CDIAC’s website at: CDIAC 2009 Seminars
FUNDAMENTALS OF DEBT FINANCING
Considering whether to issue debt? What factors contribute to getting the best price? A panel of experts explains basic concepts of structuring, marketing and pricing the deal, and the relationships between principal, interest, price and final proceeds. Available types of interim and long-term instruments are described and evaluated. The seminar also discusses what to expect from industry professionals and how they can help reduce costs. The seminar concludes with a review of issuer responsibilities for initial and continuing disclosure.
When: October 1-2, 2009
Where: Concord Hilton, Concord, California
Registration Deadline: September 1, 2009. To register, please visit CDIAC’s website at: CDIAC 2009 Seminars
FINANCING SOLAR ENERGY: OPTIONS FOR CALIFORNIA’S LOCAL GOVERNMENTS
State and local entities are experimenting with ways to finance solar energy projects using private and public funding. Panels present financing options, such as Mello-Roos, public-private partnerships (P3s), provisions of AB 811, and tax credits available through the Clean Renewable Energy Bonds program. The seminar concludes with two panels that address recent developments and assess the advantages of solar energy financing for public agencies.
When: October 8-9, 2009
Where: Oakland Marriott, Oakland, California
Registration Deadline: September 8, 2009. To register, please visit CDIAC’s website at: CDIAC 2009 Seminars
ADVANCED CONCEPTS AND PRACTICES FOR INVESTING PUBLIC FUNDS
Speakers discuss investment practices, including how agencies may wish to: (a) modify investments in light of recent market conditions, (b) evaluate the portfolio using benchmarking and duration principles, and (c) measure credit risk. The seminar concludes with discussions of hot topics by leading industry advisors.
When: October 22-23, 2009
Where: Wyndham San Jose, San Jose, California
Registration Deadline: September 22, 2009. To register, please visit CDIAC’s website at: CDIAC 2009 Seminars
If you have questions, please email CDIAC Education or contact the commission at (916) 653-3269. If you would like to be added to additional mailing lists, need to update your subscriber information or would like to be removed from this mailing list, please select the appropriate tab in the header above.
RentBits.com Releases Free Average Rental Rates for Over 4,000 Cities in the U.S.
Published: August 28, 2009 http://rentbits.com/rb/s/find-rentals
By Erika Schnitzer, Associate Editor
|More on TALF Extention|
|FED announced it would extend a program aimed at bolstering consumer-loan and commercial-real-estate markets into 2010, even as it allows other recovery programs to expire. Read more...|
|Right Tools, Right Now - FREE August Technology Resources|
|Take advantage of FREE technology resources thanks to NAR's RIGHT TOOLS, RIGHT NOW initiative, including a listing on CommercialSource.com, NAR's website and marketplace designed specifically for commercial brokers and investors. New offers each month so visit www.REALTOR.org/RightTools often! Read more...|
|Investors Facing Fallout from Values, Ratios Knocked 'Out of Whack'|
By Mark HeschmeyerWhile signs of a tentative recovery in the economy continued to appear, including reports issued this week on the fourth-consecutive month of improving new-home sales in July and a sizable increase in durable goods orders by manufacturers' orders also for July reported by the Commerce Dept., it is also clear that investors will be grappling with the fallout from the near-collapse of the U.S. economy for some time to come. This past week, three separate news items reflect the degree...
» Click here for full story
|» A Not-So-Long Road to Recovery for Retail Real Estate?|
|» Mixed Signals: Nonresidential Construction Forecasts See Little Improvement Near-Term|
|» Developing a Yardstick for Measuring Energy|
California's Industrial Development Bond (IDB) Program: Finance Opportunities for Banks and Their Business Clients.
August 27, 2009, 10:00 am - 12:00 pm PST
Call-in number 888-808-8526
Lawyer at Law offices of Andrea G. Van Leesten: firstname.lastname@example.orgLocation Greater Los Angeles Area Industry Law Practice
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By Aleksandrs Rozens
A New York bankruptcy judge's ruling has thrown into question one of the most sacrosanct aspects of securitization - that debt, or more specifically monthly principal and interest payments resold to investors as a bond, is bankruptcy remote and out of the hands of firms that file for court protection.
The subject has cropped up several times in the General Growth Properties' bankruptcy, much to the annoyance of the judge overseeing the case. But how this issue was resolved promises to be a source of debate for participants in the nearly two-decade-old commercial mortgage-backed securities market.
GGP is a Chicago real estate investment trust that specializes in malls such as Boston's Faneuil Hall and New York's South Street Seaport. The company, started in the early 1950s, filed for bankruptcy protection on April 16 in New York's Southern District Court. With 200 malls in 44 states, GGP had just over $29 billion worth of assets and $27 billion in liabilities late last year.
Washer and Dryer In Unit is Most Searched Amenity on Apartment Guide
Published: August 26, 2009
By Anuradha Kher, Online News Editor
Atlanta--Apartment Guide has released a list of the top apartment features and community amenities that consumers searched for on ApartmentGuide.com from February to August 2009.
“As apartment industry experts, we are often asked by advertising clients and key influencers what the most popular renting features and amenities are,” says Arlene Mayfield, president, Apartment Guide. “We’re noticing that now more than ever, renters are searching for added value included in the rent such as some paid utilities and furnished apartments. Searches for short-term lease options have also become more prevalent. This indicates that consumers are still being mindful of their budgets and lease commitments as the overall economy attempts to regain footing.”
The apartment features and community amenities consumers searched most often for on ApartmentGuide.com over the last six months include (in order):
1. Washer and Dryer In Unit
2. Pets (allowed)
3. Air Conditioning
4. Some Paid Utilities
5. Washer and Dryer Connections
9. Cable Ready
10. Furnished Available
11. Swimming Pool
12. Short Term Lease Available
13. Fitness Center
14. Gated Access
15. Oversized Closets
Distance (of apartment from city center) and price range were also key factors in people’s online searches. Not surprisingly, five miles from city center was preferred, followed by 10 and 20 miles respectively. The majority of people looking for a place to live on ApartmentGuide.com searched for apartments in the $500-$700 price range followed by any-$500 and $700-$900.
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Nielsen Business Media
New York, NY 10003
August 20, 2009
Update: The latest results of the Moody's/REAL CPPI (published by Moody's on August 19) show a price-change return of negative 1.0% in June for all properties in the national index. This reflects the same-property price change in realized round-trip investment for transaction closings in June compared to the previous month. This puts the Moody's Index 35.5% below its 2007 peak. Index methodology developed at MIT/CRE. Click here for Press Release on MIT-RCA index launch.
August 3, 2009
Results for the 2nd quarter of 2009 show an 18.1% decline in prices from the previous quarter for properties sold from the NCREIF database, placing this index 39% below its 2007 Q2 peak. The demand-side index fell a record 17.6%, placing this index of potential buyers' reservation prices at 48% below its 2007 Q2 peak. (See links below....)
Click here for the latest Press Release, Commentary & FAQs
Click here to learn more about the TBI
Posted: 25 Aug 2009 05:02 AM PDT
In yesterday's New York Daily News, Dana Berliner of the Institute for Justice -- the good folks who brought us Kelo -- published "End eminent domain abuse: N.Y.'s highest court should rule against Bruce Ratner." The latest Atlantic Yards case, Goldstein v. New York State Urban Dev. Corp., which is currently being briefed in the New York Court of Appeals prompts the op-ed:
It has been more than a generation since the state's highest court has interpreted the New York Constitution's provision that property may be taken only for "public use." It's time for the court to take a long, hard look - before more damage is done.
The fundamental legal question is whether the state should go along with the notorious 2005 decision by the U.S. Supreme Court in Kelo vs. City of New London. In that ruling, the court said that using eminent domain for potential job creation, increased taxes or general economic development does not violate the U.S. Constitution. In the firestorm of outrage that followed, 43 states changed their laws to make eminent domain for private development either more difficult or impossible.
New York remains one of only seven that have not.
It is true that, after Kelo, the U.S. Constitution itself gives little or no protection to home or business owners. But that document is a floor for individual rights, not a ceiling. State constitutions can protect rights above that baseline. For instance, when the U.S. Supreme Court refuses to protect people's rights to freedom of speech or freedom from unreasonable searches and seizures, state high courts often step in, finding that state constitutions offer greater protection.
That is exactly what has happened in many states since Kelo. The high courts of Hawaii, Ohio, Oklahoma, Pennsylvania, Missouri, New Jersey and Rhode Island have all ruled that property owners within their borders have greater protections against eminent domain abuse. None has made Kelo the rule under the state constitution.
The New York Court of Appeals should follow this trend.
. . . .
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Coming in the September/October 2009 Issue10-Year Feature: Looking Back Toward the Future
As Real Estate Southern California marks its 10th year of publishing, industry leaders look back at the forces, factors and trends that shaped the commercial real estate markets in Southern California over those 10 years and offer their assessments of how the conditions created by those forces will change the commercial real estate landscape over the next decade.Women of Influence
RESoCal honors some of the region's most accomplished female executives in its 10th Annual Women of Influence. No more gender barriers in the business world, as several of these women on the list have been at the forefront of changes in the industry for years.Multifamily Update
The Rental Market Showdown Many multifamily players see light at the end of the tunnel,
but how far away is it?
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Precondemnation is a critical process when acquiring property for a project and often mistakes are made that can escalate costs, delay acquisition, and halt development.
Join Nossaman for a free webinar to learn what you can do during the precondemnation phase of an acquisition to avoid unnecessary costs and delays. Participants will learn:
RESERVE YOUR SPACE TODAY!
To register for the event, click here.
One hour of California MCLE will be offered.
U.S. 8th Circuit Court of Appeals, August 17, 2009
US v. Nothshore Mining Co., No. 08-1423
An order holding that certain parts of a 1975 injunction regulating air emissions from defendant's taconite pellet operation at Silver Bay, Minnesota, were moot is affirmed where: 1) defendant-mining company was not aggrieved by the district court's order such that there was jurisdiction over its appeal; 2) similarly, the government is not an aggrieved party and its cross-appeal is dismissed; 3) the court did not abuse its discretion in vacating sua sponte the injunctions' air-emissions provision of the injunction where state and agency regulations parallel the provisions in the injunction. Read more...
U.S. 8th Circuit Court of Appeals, August 18, 2009
Kennedy Bldg. Assoc. v. CBS Corp. , No. 07-3622
In an environmental case involving the clean-up of a contaminated site, a modified injunction stating that defendant-CBS has "substantially complied" with a Minnesota Decision Document and imposing no additional requirements on it is affirmed in part and vacated in part where: 1) the district court's decision was consistent with the prior mandate from the circuit court; 2) there was substantial evidence in the record that CBS completed the remediation required by the Decision Document, and thus there was no error in finding that no further relief was necessary under Paragraph 1 of the injunction; 3) denial of plaintiff's requests to increase the amount of a performance bond posted by CBS was proper; but 4) a denial of post-judgment response costs is vacated and remanded for further proceedings. Read more...
California Appellate Districts, August 17, 2009
Long Beach v. L.A. Unifired Sch. Dist., No. B207721
In a petition by a city seeking to overturn a school district's final environmental impact report (FEIR) evaluating a plan to construct a high school, the denial of the petition is affirmed where respondent-district proceeded in the manner required by law where the FEIR adequately analyzes the challenged impacts of the project and is sufficient as an informational document. Read more...
Posted: 21 Aug 2009 02:16 PM PDT
In an expansive opinion in Township of Readington v. Solberg Aviation Co., No. A-3083-07T3 (Aug. 19, 2009), the Appellate Division of the New Jersey Superior Court determined that a municipality abused its condemnation power when it attempted to take property to thwart the expansion of a nearby airport.
The facts are set forth in detail in the opinion and will not be repeated here, but the most interesting portion of the opinion deals with the property owner's claim of pretext. It argued that the condemnation was "at least substantially motivated, by the desire of Township officials to limit airport expansion and to prevent [Solberg-Hunterdon Airport] from becoming a jetport." Slip op. at 35.
The Township did not dispute the contention, but argued the motivations of individual officials are not relevant in determining the public use or purpose of a taking. Under New Jersey law, a court will not overturn a decision to use eminent domain "in the absence of an affirmative showing of fraud, bad faith or manifest abuse." Township of West Orange v. 769 Assocs.,LLC, 800 A.2d 86, 90 (N.J. 2002). A condemnation may be set aside when the "real purpose" is other than the "stated purpose." See Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102 (N.J. Super. 1998).
The court examined the objective factors surrounding the adoption of the condemnation ordinance, and concluded they "impugned its validity." Slip op. at 38. First, it was unlikely to achieve its stated purpose. The taking was purportedly forSlip op. at 39. However, "[r]eports prepared by the Township's experts indicate that the airport is in poor physical condition and has limited prospects for future economic success." Id. The court compared expert reports which questioned the viability of the airport. See id. at 40-42. The court also looked at the context of the condemnation to conclude the real purpose of the taking was to control airport operations, and that much of the area was already open space. See slip op. at 43-45.
open space and farmland preservation[,] land for recreational uses, conservation of natural resources, wetlands protection, water quality protection, preservation of critical wildlife habitat, historic preservation, airport preservation, and preservation of community character.Slip op. at 44. The court concluded the Township abused its power of eminent domain "to avoid the limitations on municipal zoning power imposed by State airport statutes and regulations," and "is not within the police powers delegated to the municipalities by the Legislature." Id. at 48. The full opinion is worth a read.
The fact that the condemnation of development rights to the airport will not achieve its stated purposes indicates that the true purpose of the condemnation was to secure a greater measure of land use authority over the airport than the Township currently enjoys. Further, objective evidence suggests that the condemnation was initiated to secure Township control over airport operations. These are improper purposes in that they subvert the Commissioner's ultimate authority over aeronautical facilities.
Navigate the Zoning Process with an In-Depth Understanding of Zoning Regulations
Are you current on your knowledge of zoning laws? Can you confidently solve potential problems and ensure smooth zoning processes? Join us at this seminar where you'll learn to facilitate positive outcomes by understanding key components of the approval process, procedures for challenging a zoning decision as well as requirements for administrative approach. Recognize constitutional limitations on zoning actions to ensure your actions are within the bounds of the law. Enroll today!
Who Should Attend
This basic-to-intermediate level course will assist the following in understanding and working with zoning and land use regulations:
CONTINUING EDUCATION CREDITS:
|American Institute of Architects – AIA: 6.00|
American Institute of Certified Planners – AICP: 6.00
California MCLE for Paralegals – California MCLE for Paralegals
Continuing Legal Education – CLE: 6.00
International Association for Continuing Education Training – IACET: 0.60
* denotes specialty credits
Market Value or Salvage Value
Doe's Your Appraiser Know the Difference?
Market Value or Salvage Value
Doe's Your Appraiser Know the Difference?
A definition of market value as stated in the glossary of the most recent edition of the Uniform Standards of Professional Appraisal Practice is “The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby:
1. buyer and seller are typically motivated;
2. both parties are well informed or well advised, and acting in what they consider their best interests;
3. a reasonable time is allowed for exposure in the open market;
4. payment is made in terms of cash in United States dollars* or in terms of financial arrangements comparable thereto; and
5. the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.”
We will be discussing this topic, Online this Monday, August 24 @ 5:00 PM PST. Just go to our website and click on the ONLINE NOW Button
Posted: 20 Aug 2009 07:36 PM PDT
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Posted: 20 Aug 2009 11:33 AM PDT
|FED and Treasury Announce TALF Extension|
|Analysts said the move to extend to mid-2010 the emergency program, aimed at boosting lending in the ailing commercial real estate market, is most important to the commercial real estate sector, which is being buffeted by a lack of credit and as the recession curbs revenue from office, retail and apartment buildings. Read more...|
|NAR'S ONLINE GREEN DESIGNATION COMMERCIAL ELECTIVE COURSE COMING SOON|
|The commercial elective for NAR's Green Designation takes a look at sustainable strategies, practices, and considerations in commercial real estate! . The co urse helps students understand brokers' specific roles in guiding clients and customers in the sale or acquisition of sustainable property or property with sustainable features. Click here to be notified when the online course launches! Read more...|
|Commission Awarded in Failed Short Sale|
|Iowa court determines that secured lender interfered with broker's listing agreement by demanding a larger share of the proceeds prior to closing. Please note: The following link is to a member-only area of the site. Read more...|
Before your new tenant moves in the owner or manager should inspect the unit for damages. There should be a detailed report of any damages not there prior to this tenants move out. Your report should be consistent with the kind of detail you would need to make your case in court.
A successful move out procedure begins with an understanding of the meaning of "normal wear and tear". This simple definition will save you unnecessary arguments with tenants and possible court time.
|August 13, 2009 - August 19, 2009|
Provided by Commercial Real Estate Direct
RevPAR Suffers At High-End Hotels
In Q2, overall sales in Los Angeles decreased 77% compared to the prior year. Over the last 12 months, the price per square foot for office property was down 17%, multifamily was up 3%, industrial was down 14% and retail was down 8%.
LoopNet's Q2 2009 Investment Market Reports provide a complete snap-shot of market trends and key details for up to twenty closed transactions in Los Angeles, Orange County & Inland Empire during last quarter. These reports provide an important visual tool that can both help you analyze market trends, as well as help you explain market conditions and pricing decisions to your clients and colleagues.
|RCA Education Connection|
If you are looking for affordable commercial education then register today for one of the RCA's upcoming webinars. On August 20 and 21, the RCA in partnership with Top Dogs is offering two webinars at a deeply discounted rate of $49 per session. The two hour sessions are regularly priced at $89, but if you use one of the following discount codes fhosuddnkr or rihequpimu, you will receive an immediate $40 discount. The RCA/Top Dogs webinars will give you the opportunity to learn from Peter Droubay and Bob McComb, the co-creators of the Top Dogs commercial real estate training programs.
The August 20 webinar "Commercial Property Financing: How to Get a Deal Done" reviews how lenders look at commercial property, how to package commercial property for financing, and where to get the loans. The August 21 webinar "Impressive Presentations – How to Win Every Assignment" is designed to help improve presentation skills. Whether you are doing a presentation to secure a listing, showing property or space, working to get a tenant rep assignment, etc., this class will increase your ability to succeed at it.
On September 9, the RCA is offering a FREE one hour webinar featuring Rick Hood, a 2009 RCA Signature Series speaker. The September 9 webinar "Practical GPS and Mapping Software for Commercial Land Development" will review what a handheld or car GPS can and can’t do for you in the commercial market today and what is likely to be able to do by 2013.
All sessions are first come, first-served and limited to 200 attendees. Visit the RCA Education web page to learn more about the education resources available to you from the RCA and commercial affiliates. For Top Dogs webinar registration questions, contact Top Dogs at 888-894-5772. For general questions, contact the RCA at 800-874-6500.
Grubb & Ellis Faces Possible Delisting
SANTA ANA, CA-Grubb & Ellis Co. has been notified by the New York Stock Exchange that it is not in compliance with the NYSE's continued listing standards because its total market capitalization has been less than $50 million over a consecutive 30-trading-day period and its last reported stockholders' equity was less than $50 million, according to a statement Monday by the Santa Ana-based real estate services firm. The company said that its business operations, SEC reporting requirements and credit agreements are unaffected by the notification.
New York Stock Exchange procedures give Grubb & Ellis 45 days from the receipt of the notice to submit a plan to the NYSE demonstrating how it intends to bring the company in compliance with the listing standards. The company "intends to cure the deficiencies and to return to compliance with the NYSE continued listing requirements," it said.
The notice regarding the company's market capitalization followed an earlier notice, in February, that Grubb & ELlis was not in compliance with the NYSE's listing standard related to maintaining a minimum average closing price of $1 per share over 30 consecutive trading days. The company, whose stock closed at 62 cents per share on Monday, said that it has until Jan. 23, 2010 to come back into compliance with the requirement regarding minimum average closing price per share.
The decline in the Grubb & Ellis market capitalization marks a steep fall from its value at the time the company merged with NNN Realty Advisors in December 2007. GlobeSt.com reports at the time said that the newly merged company would have a capitalization of $725 million.
Grubb & Ellis lost $32.8 million for the second quarter, the company reported last week. Interim CEO Gary Hunt said in the company's quarterly conference call that the loss reflected "a continued slowdown in leasing throughout all sectors and a stalled investment sales market" and that "The economy in general and the operating environment for commercial real estate services continue to be extremely challenging."
|In Tough Times, Demand for Outcome Measurement is Growing|
|Community development organizations and their funders invest significant resources to prepare low- to moderate-income families for sustainable homeownership and to build stronger communities. But how do these organizations know that they are meeting their ultimate goals? How can their funders be assured that their investments are generating long-term impact? In these tough economic times it is more important than ever to answer these questions. Learn how NeighborWorks' Success Measures is meeting nonprofits' need for outcome measurement.|
|New Community Stabilization and Asset Management Courses Available|
|NeighborWorks is pleased to announce the release of two new e-learning courses! AH295el, Community Stabilization: An Introduction to REO Acquisition, Rehab, Disposition and Management and AM121el Fundamentals of Asset Management are both now available online through NeighborWorks' e-learning modules. Both of these courses bring the materials from the NeighborWorks Training Institute courses to your computer so you can learn and work toward certification from the convenience of your office or home. Learn more about these and the many other e-learning opportunities from NeighborWorks at our e-learning Web site|
|NeighborWorks Webinar on Planning and Implementing an REO Program|
|The current economic climate has drawn attention to the issue of Real Estate Owned (REO) properties, with tens of thousands of foreclosed properties appearing in our communities. In addition to a growing number of courses focused on the acquisition, management and sale of REO properties, as well as classes on stabilizing neighborhoods and helping prospective homeowners purchase foreclosed properties, NeighborWorks America is pleased to offer a free, half-hour webinar that guides boards, executive directors and other key decision-makers in planning and implementing a REO program. Please note that there is a link at the end for a printed copy with speaker's notes.|
According to Grubb & Ellis, a mere $2.2 billion of industrial properties valued at greater than $5 million sold in the first five months of the year. The figure was down 81% percent from the same period last year and substantially below the average for the three years before that. Moreover, according to Marcus & Millichap, in Q1 the inventory of distressed industrial properties increased more rapidly than the other primary commercial property segments.
Posted: 14 Aug 2009 08:13 AM PDT
The property owners have filed their merits brief in the beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The case presents three questions:
The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
In the decision under review (Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008)), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean.
More about the case on our resource page.
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Q2 Los Angeles Market Reports
Posted Aug 12, 2009, 10:26 am CDT
By Debra Cassens Weiss
Lawyers who defend those accused of tax fraud may be seeing an increase in workload soon.
Swiss bank UBS has agreed to disclose the names of U.S. clients suspected of tax evasion in a deal reached with the U.S. Justice Department, the New York Times reports.
Justice Department lawyer Stuart Gibson told of the deal in a conference call with a judge overseeing a civil suit against UBS. It seeks to force the bank to reveal the names of 52,000 Americans suspected of trying to evade taxes by moving their money to offshore accounts. UBS had fought the suit, claiming disclosure of the names would be a violation of Swiss banking laws.
Tax lawyers told Bloomberg News they expect UBS to disclose thousands of accounts. Several people have already revealed they had offshore accounts under a voluntary disclosure program offering reduced penalties.
New York tax lawyer Bryan Skarlatos told Bloomberg he expects the settlement to include an agreement between the United States and the Swiss government that could affect all U.S. taxpayers who kept money in Swiss banks.
FHA SUSPENDS TAYLOR, BEAN & WHITAKER MORTGAGE CORP. AND PROPOSES TO SANCTION TWO TOP OFFICIALS:
On August 4, 2009, The Federal Housing Administration (FHA) suspended Taylor, Bean and Whitaker Mortgage Corporation (TBW) of Ocala, Florida, thereby preventing the Company from originating and underwriting new FHA-insured mortgages. The Government National Mortgage Association (Ginnie Mae) is also defaulting and terminating TBW as an issuer in its Mortgage-Backed Securities (MBS) program and is ending TBW's ability to continue to service Ginnie Mae securities. This means that, effective immediately, TBW will not be able to issue Ginnie Mae securities, and Ginnie Mae will take control of TBW's nearly $25 billion Ginnie Mae portfolio…
To read this press release in its entirety, please visit: http://www.hud.gov/news/release.cfm?content=pr09-145.cfm&CFID=341752&CFTOKEN=3be7678-0009780b-078f-1636-b54a-80e8c12e0000
FHA-insured Loans Associated with Taylor, Bean and Whitaker (TBW) Questions and Answers for Consumers can be found at: http://www.hud.gov/news/consumer-guidance.pdf
FHA-insured Loans Associated with Taylor, Bean and Whitaker (TBW) Questions and Answers for Lenders and Brokers can be found at: http://www.hud.gov/news/industry-guidance.pdf
If you have any questions, please contact: email@example.com or visit: http://www.fhaoutreach.gov/FHAFAQ
INSIDE THE DEAL: Marcus & Millichap Participates in Active LIHTC Property Sales Market
Published: August 11, 2009
By Keat Foong, Executive Editor LIHTC Appraiser
Creekside at Tasker’s Chance sold at a 7.63 percent cap rate. Conventional apartment cap rates in the market may be about 7 to 7.25 percent, says Kunitz. He said LIHTC apartment properties in the market may fetch a 50-70 basis point spread over comparable market-rate ones.
“Frederick is a very desirable, low velocity and high barrier to entry sub-market of Washington, D.C. and Baltimore,” stated local Washington, D.C. Marcus & Millichap agent David Weber. “Therefore, demand from investors that understand the value and limited opportunities in this market were aggressively pursuing this acquisition.”
The purchaser has to sign a guarantee with the original tax credit investors to protect the investors from potential recapture of tax credits that would occur if the property falls out of LIHTC compliance.
In some states, purchasers of LIHTC property have to be approved by the state housing finance authority, but not in Maryland. Kunitz said that being an experienced LIHTC developer/manager is not necessarily a prerequisite to purchasing the LIHTC properties. Companies can be prepared for the task. Marcus & Millichap, he says, converts about five buyers per year to becoming LIHTC buyers.
The Tax Credit Group of Marcus & Millichap of Kunitz, Robert Sheppard, Armand Tiberio and Spencer Hurst based out of the firm’s Seattle office, along with local agent David Weber in the Washington, D.C., office represented the seller in the transaction.
The purchase was financed through an agency loan, says Kunitz. The property’s occupancy was close to 94 percent, he said. The property has to remain afforable through Dec. 31, 2025.
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Sales Volume Plunges As Cap Rates Rise
Posted 12 hours, 24 minutes ago
By Debra Cassens Weiss
Buyers of condo hotels are going to court in an effort to get their money back, arguing that the sellers violated securities laws.
The units have turned out to be bad investments for many buyers, the Wall Street Journal (sub. req.) reports. The condos have lost much of their value at the same time that travelers are renting the units less frequently, and for less money.
Securities and Exchange Commission guidelines issued in 1973 say condo hotel purchases could be subject to securities laws if sellers make claims about rental income, market a rental program or limit occupation of the units.
Rob Webb, a partner at Baker & Hostetler in Orlando, Fla., told the Wall Street Journal that marketing materials are often cited as evidence that the units are securities. "Quite frankly, the main exhibit to the complaint and the single piece of evidence that's most damaging is the developer's own sales brochures," he said. In other cases, buyers claim oral promises about rental income brought the units under securities laws.
So far the cases aren’t succeeding, the story says. Lower courts have not only turned down buyers’ claims, but also blasted them for failing to read their purchase contracts.
Aldous Huxley once observed that “the only completely consistent people are dead.” Huxley, once an inarguably great novelist (and now inarguably consistent) had a point. Opinions - - even well researched, thoughtful opinions - - can change over time. Once a condemnation case is filed, depositions and other discovery occur. New facts may emerge. Even a good pre-litigation appraisal report may become obsolete.
Most business and real estate appraisal experts understand this fact. Many, however, express extreme reluctance about ever changing any pre-litigation opinion. Most appraisal experts - - particularly those who testify in court - - strongly prefer to remain consistent.
The pertinent California jury instruction gives such expert witnesses good reason for this attitude. One instruction, BAJI 2.20 (“Believability of Witnesses”), permits jurors, in evaluating a witness, to consider “a statement previously made by the witness that is consistent or inconsistent with the testimony of the witness.” In others words, trial testimony inconsistent with a pre-litigation report can sink an expert. On a fundamental level, most appraisal experts, like most people, hate to be caught in an inconsistency; this is a situation, they claim, in which they wouldn’t be caught . . . well, dead.
For this reason, attorneys for condemnees often search for inconsistencies between an expert’s pre-litigation opinions, and the opinions to which the same expert testifies at trial. Public agency attorneys, in turn, try to keep their experts’ pre-litigation appraisals confidential. They argue that a pre-litigation appraisal report is privileged even when they later designate the report’s author as a trial witnesses. The arguments:
Arguments for Keeping Pre-Litigation Appraisal Reports Private:
Most public agency lawyers focus on Code of Civil Procedure section 1255.060, subdivision (b). That code section provides:
In the trial of the issue of compensation, a witness may not be impeached by reference to any appraisal report, written statement and summary of an appraisal, or other statements made in connection with the deposit or withdrawal pursuant to this chapter, nor shall such a report or statement and summary be considered to be an admission of any party.
Public agency lawyers also point to the Tentative Report of the Law Revision Commission (September 27, 1967), the group which proposed section 1255.060, subdivision (b). The Tentative Report states that the statute “precludes impeachment of a witness at trial by reference to appraisal reports, statements of valuation data other statements made by him in connection with (1) a deposit and notice thereof . . . .” (California Law Revision Commission, Tentative Recommendation and a Study (September 1967), p. 1151.) The Law Revision Commission, in its 1967 Tentative Report, reasoned that “if such evidence could be used, it is likely that the plaintiff would make an inadequate deposit in order to protect itself from the use at trial of evidence submitted in connection with the deposit.” (Id. at p. 1785.)
A national treatise on condemnation tends to support this position. Nichols on Eminent Domain states that those statements of the condemning authority which “may become admissions” only include appraisals “of the property prepared and adopted for purposes other than acquisitions, negotiations or condemnation.” (5 Nichols on Eminent Domain (3d ed. rev. 1977), § 18.12, emphasis added.) Nichols is quite explicit. It states:
In the context of an eminent domain case, the concept of being compelled to produce drafts of an appraiser’s report is a sobering thought. In most cases, the appraiser will work closely with the attorney in an attempt to refine (not sanitize) the report so that it accurately reflects current market data as well as acceptable methods of appraisal in a particular jurisdiction . . . . [If produced] it is likely that those reports would be used to impeach the appraiser at trial. This author believes that the production of preliminary reports clearly encroaches on the work-product doctrine and should be discouraged. (7 Nichols, § 7A.02.)
Other arguments are available to public agencies. They may also argue that preliminary appraisal work is inadmissible under Evidence Code section 1152 - - a statute which protects materials generated for purposes of settlement discussions. Some agency attorneys also argue that pre-litigation reports should admissible only if they are truly inconsistent. (See El Monte Union High School District v. Consumer Holding Co. (1966) 247 Cal.App.2d 173 [155 Cal.Rptr. 467].)
No question exists, of course, that pre-litigation reports are usually inadmissible when prepared by a different appraiser than the one who will testify at trial. An expert cannot usually be impeached with a report he or she did not write, and has never seen or relied upon. But when an agency designates as its expert witness the same person who prepared the pre-litigation report, problems can arise.
Most landowner or business owner attorneys begin and end their arguments with a citation to County of Contra Costa v. Pinole Point Properties, Inc. (1984) 27 Cal.App.4th 1105 [33 Cal.Rptr.2d 38]. The Pinole Point court held squarely that the condemnor can impeach the condemning agency’s trial expert through an earlier appraisal report by that same expert. (Pinole Point, supra, 27 Cal.App.4th at pp. 1112-1113.)
Moreover, the official Law Revision Commission Comment, 1975 addition, contains some significant differences from the earlier Tentative Report. Unlike the Tentative Report, the official Comment does not explicitly address earlier reports by the witness him or herself. (Cal. Law Revision Comment, 1975 addition, West’s Ann. Code Civ. Proc., § 1255.060 (1982) pp. 691-692.)
Also, the leading California treatises contradict Nichols, the national treatise quoted above. (See 14 Dankert, Cal. Real Estate Law & Practice (1997) Prejudgment Possession, 505.06, p. 505-10; 1 Matteoni & Veit, Condemnation Practice in California (1997), Trial Preparation in Trial, § 9.62, p. 448.) Both cite Pinole Point as the applicable California rule.
Most important, the general law of expert discovery, both in California and federal courts, contradicts Nichols. One federal district court observed, “Discovery of the reports of experts, including reports embodying preliminary conclusions, can guard against the possibility of a sanitized presentation at trial, purged of less favorable opinions expressed at an earlier date.” (Hewlett-Packard Co. v. Bausch & Lomb, Inc. (N.D. Cal. 1987) 116 F.R.D. 533, 537, affd. (Fed. Cir. 1990) 909 F.2d 1464, quoting Quadrini v. Sikorsky Aircraft (D. Conn. 1977) 74 F.R.D. 594, 595; but see Taylor v. Anderson-Tully Company (W.D. Tenn. 1993) 151 F.R.D. 295, 297 [disagreeing in part with Quadrini: “On balance, the court concludes that where there is no showing of any particularized need for such reports, such as might be the case in a particularly complex expert dispute, parties should not be required to produce their expert witness’ reports which have been prepared in anticipation of litigation.”].) Forensic Appraiser, Forensic Appraisal
California trial courts are likely to compel production of preliminary reports of those experts designated to testify at trial. Public agencies should (1) insist that an appraiser complete his pre-litigation work carefully enough to withstand cross-examination in court; or (2) consider hiring different experts to testify at trial - - and avoid contaminating those trial experts with earlier, inconsistent reports from others.
|in News > Mortgage Servicing|
By MortgageOrb.com on Monday 03 August 2009 appraiser, appraisal http://www.mortgageorb.com/e107_plugins/content/content.php?content.4031
Ohio Attorney General Richard Cordray and the Ohio Department of Commerce have filed a lawsuit against Santa Ana, Calif.-based Carrington Mortgage Services LLC alleging that the company breached its agreement with the state to offer reasonable loan modifications to eligible borrowers.
The lawsuit also alleges that Carrington violated Ohio's Consumer Sales Practices Act by providing incompetent, inadequate and inefficient customer service in connection with its servicing of Ohio mortgage loans.
Cordray is the first attorney general in the nation to file suit against a mortgage servicer in the wake of the foreclosure crisis.
"This lawsuit makes it clear that we have reached zero tolerance for this kind of behavior from loan servicers," says Cordray. "We've tried to work with them, but now we must take action. I am determined to see that mortgage servicers step up, take responsibility and start making it right with Ohioans. No more excuses."
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Five Companies Agree to $21 Million Settlement for Environmental Damages in Pennsylvania
Mon, 03 Aug 2009 12:48:20 -0500
Five companies have agreed to compensate the United States and the Commonwealth of Pennsylvania nearly $21.4 million in cash and valuable property to address natural resource damages resulting from decades of zinc smelting operations at the Palmerton Zinc Pile Superfund site in northeast Pennsylvania. enviornmental appraiser, enviornmental appraisal
NAR Seeks Your Expertise and Experience
Dear Commercial Practitioner:
commercial appraiser, commercial appraisal
Commercial real estate is struggling with low sales and leasing activity. In addition, $108 billion of commercial loans are in some form of distress. In the current economic situation, NAR seeks your expertise and experience to gain a sharper insight into market activity. Your responses help inform members and markets about the direction of commercial markets, sales, pricing, and leasing activity. With better information about your market, we can better serve your research needs and provide faster, more accurate data to members, lawmakers, and NAR stakeholders.
Please take a few moments to respond to the brief August Commercial Real Estate Market Survey. The survey should take less than 2 minutes. Your individual responses on these important issues will remain completely confidential.
Go to http://www.zoomerang.com/Survey/?p=WEB229GCXP9LA7 by August 14, 2009. Your participation is appreciated and will contribute to your association’s research effectiveness. The results of this survey will be emailed to respondents in an advanced report before its official release.
If you have any questions, please contact NAR Research at (202) 383-1081.
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California's Electronic Discovery Act Takes Effect; Parties Must Preserve Electronic Information