Can the Current Financial Crisis Be a Blessing in Disguise for Condo Contract Holders Scheduled to Close?
Last Friday, I had the pleasure of having lunch with Jared Beck and Elizabeth Lee Beck of the business litigation law firm, Beck & Lee. Jared Beck, who pens The Magic City Harvard Lawyer blog, raised an interesting question: Can contract holders of condos in Miami scheduled to close in the coming months use the current financial crisis and inability to acquire financing as a valid argument for nonperformance of their contractual obligation?
I know, I know…preconstruction condo contracts clearly state that performance is not contingent upon financing. However, a recent federal ruling in Hoosier Energy Rural Electric Cooperative, Inc. v. John Hancock Life Insurance Co., contains language that may assist condo contract holders who are scheduled to close in the near future.
Here’s some background on the federal case, as provided by Jared Beck’s recent blog post entitled, “Federal Court Endorses Financial Crisis As Basis For Relief From Pre-Existing Contractual Duties; Could Real Estate Contracts Be Affected?”:
The background is somewhat complex but essentially involves the owner of an electrical generating plant in Indiana, Hoosier Energy, which in 2002 entered into a complex lease-back arrangement over some of its assets with an insurance company, John Hancock, aimed at creating a tax shelter for John Hancock. As part of the deal, Hoosier Energy was required to obtain what amounted to a line of credit from Ambac, a financial institution called a “swap provider.”
Until 2008, Hoosier Energy made all of its scheduled payments under the agreement. Then, global financial crisis ensued, and the credit rating of Hoosier Energy’s swap provider sunk like a stone. Hoosier Energy was unable to find another swap provider with a suitable credit rating who could be substituted in a timely manner. John Hancock declared Hoosier Energy to be in default and demanded a large termination payment, shortly after which Hoosier Energy filed suit, requesting a protective injunction.
Mr. Beck went on to say in his blog post that “Hoosier Energy argued that the extraordinary freeze in the global credit markets at least partially excused it from performing under the contract as an instance of ‘commercial impracticability,’ mitigating the default declared by John Hancock”. The court agreed with Hoosier Energy’s argument.
Mr. Beck concluded his post with the following:
How could this newly articulated doctrine be more broadly applied? One possibility rests with the large number of individuals who signed preconstruction real estate contracts several years ago, with the intention of obtaining mortgage financing once the project was finished. Now that many of those projects have been or will soon be competed, those buyers are unable to close because, owing to the global credit crunch, banks will no longer extend mortgage financing for certain new real estate construction at 2004 or 2005 prices.
While many of these purchase contracts were drafted with clauses stating that they were not contingent upon the buyer qualifying for a mortgage, it could be argued, on the basis of the reasoning set forth in Hoosier Energy, that the deals were signed under both parties’ reasonable assumption that financing would actually be available from somewhere once construction was completed. To quote the Southern District of Indiana in Hoosier Energy, “The crisis was not anticipated by the most senior economists in the country.” If that is true, why should the defense of commercial impracticability, based on the lack of accessible credit, be any less available to the individual real estate buyer seeking to mitigate the effect of a pre-existing contract then it would be to an electrical generating plant operator dealing at arms length with a multibillion dollar insurer? (To some degree, the question overlaps the analysis of whether “bailout” principles should apply equally to financial institutions and individual homeowners, both of whom are victims of their own inability to foresee the mortgage crisis).
The newly revised Fannie Mae guidelines, which went into effect on January 15, state that the government-controlled entity will no longer fund loans for new Florida condos if at least 70 percent of the total units in the development have not be conveyed or under a bona fide contract for purchase to either principal residence or second home purchasers. Contract holders who require financing and are scheduled to close in coming months are basically out of luck. It’ll be interesting to see how the courts handle this argument in 2009.
Distressed Condos Report – New Condo Developments
The spreadsheet below reveals 13 distressed condos currently listed in the MLS which reside in developments in Miami completed within the past two years. I expect this list to grow in coming months. I plan to provide future updates with new listings as well as track the outcome of condos previously listed. 12 of the 13 condos listed below are short-sales. The foreclosure process can be quite lengthy so I don’t expect to see many distressed condos in new developments become bank owned until at least the second half of the year.
View Full Spreadsheet
2 Bedroom Foreclosure at Latitude on the River – $266,000
Within the past three months, I’ve seen a handful of short-sale condos at Latitude on the River become available on the MLS. Earlier today, however, I came across the first bank-owned foreclosure condo in the building to appear.
The foreclosure condo is a 2 bedroom/2.5 bath with 1,212 square feet of interior and a 196 square foot balcony. The condo comes “decorator-ready” with concrete floors, as delivered by the developer, and is located on the southwest corner of the 20th floor. The list price is $266,000, or $219 per square foot. The most recent Brickell Condo Index published in November 2008 revealed that the average list price of condos available at Latitude on the River was $366 per square foot. There had not been any closed sales in the building at the time within the prior six months and there haven’t been any since. Lack of closed sales clearly means that prices of available condos at Latitude on the River haven’t yet fallen to a level that will attract buyers. It’ll be interesting to see if the 2 bedroom foreclosure condo at Latitude on the River will spark the interest of buyers.
View the pictures and listing information for the 2 bedroom condo foreclosure at Latitude on the River.
Top 5 Miami Distressed Condo Sales in December 2008
Sorry for the long hiatus. I’m back from my long vacation and ready to get back to work. Below, you will find what I believe to be the five best condo deals of the 36 distressed sales that closed in the month of December in the MLS located in Brickell, Brickell Key, Downtown Miami and the Arts District.
- Four Seasons Residences – unit 3305 – 1 bedroom/1 bath (611 square feet) – This unit sold for $285,000, or $466 per square foot, on December 3, 2008. Foreclosure
- Carbonell – unit 701 – 1 bedroom/1.5 bath (1,031 square feet) – This unit sold for $215,000, or $209 per square foot, on December 19, 2008. Foreclosure
- Three Tequesta Point – unit 1605 – 2 bedroom/2 bath (1,694 square feet) – This unit sold for $465,000, or $275 per square foot, on December 3, 2008. Foreclosure
- Blue Condominium – unit 2310 – 2 bedroom/2 bath (1,174 square feet) – This unit sold for $330,000, or $281 per square foot, on December 1, 2008. Foreclosure
- Cite on the Bay – unit 3502 – 3 bedroom/2 bath (1,398 square feet) – This unit sold for $230,000, or $165 per square foot, on December 10, 2008. Short-sale
Top 5 Miami Distressed Condo Sales Closed in November 2008
I found a total of 17 distressed condo sales that closed in the month of November in the MLS located in Brickell, Brickell Key, Downtown Miami and the Arts District. The following are, in my opinion, the five best deals that took place along with one worth mentioning.
- Vue at Brickell – unit 1413 – 1 bedroom/1 bath (737 square feet) – This unit sold for $90,000, or $122 per square foot, on November 18, 2008. Foreclosure
- Brickell on the River North – unit 2703 – 1 bedroom/1 bath (775 square feet) – This unit sold for $172,750, or $223 per square foot, on November 19, 2008. Foreclosure
- Brickell on the River – unit 3714 – 2 bedroom/2 bath (1,058 square feet) – This unit sold for $255,000, or $241 per square foot, on November 10, 2008. Foreclosure
- Skyline on Brickell – unit 1107 – 2 bedroom/2 bath (1,367 square feet) – This unit sold for $349,000, or $255 per square foot, on November 17, 2008. Foreclosure
- The Club at Brickell Bay – unit 3524 – 3 bedroom/2 bath (1,232 square feet) – This unit sold for $249,000, or $202 per square foot, on November 4, 2008. Foreclosure
Runner-up: Blue Condo – unit 2504 – 2 bedroom/2.5 bath (1,158 square feet) – This unit sold for $305,000, or $263 per square foot, on November 25, 2008. Foreclosure
Top 5 Miami Distressed Condo Sales Closed in October 2008
I found a total of 30 distressed condo sales that closed in the month of October in the MLS located in Brickell, Brickell Key, Downtown Miami and the Arts District. The following are, in my opinion, the five best deals that took place along with one worth mentioning.
- Skyline on Brickell – unit 2505 – 1 bedroom/1 bath (791 square feet) – This unit sold for $200,000, or $253 per square foot, on October 28, 2008. Foreclosure
- Vue at Brickell – unit 1501 – 2 bedroom/2 bath (1,255 square feet) – This unit sold for $170,000, or $135 per square foot, on October 17, 2008. Foreclosure
- Jade at Brickell – unit 504 – 1 bedroom/1 bath (895 square feet) – This unit sold for $220,000, or $246 per square foot, on October 24, 2008. Foreclosure
- Solaris at Brickell Bay – unit 1607 – 1 bedroom/1 bath (730 square feet) – This unit sold for $146,000, or $200 per square foot, on October 24, 2008. Foreclosure
- Courvoisier Courts – unit 704 – 2 bedroom/2.5 bath (1,230 square feet) – This unit sold for $290,000, or $236 per square foot, on October 22, 2008. Foreclosure
Runner-up: Jade – unit 3509 – 2 bedroom/3 bath (1,730 square feet) – This unit sold for $710,000, or $410 per square foot, on October 13, 2008. Foreclosure
Top 5 Miami Distressed Condo Sales Closed in September 2008
I found a total of 25 distressed condo sales that closed in the month of September in the MLS located in Brickell, Brickell Key, Downtown Miami and the Arts District. The following are, in my opinion, the five best deals that took place. This will hopefully give everyone a sense for where prices are for similar units in these buildings and neighborhoods. This is not an indication of where prices may or may not ultimately settle.
- Jade at Brickell – unit 1706 – 1 bedroom/1 bath (895 square feet) – This unit sold for $215,000, or $240 per square foot, on September 5, 2008. Foreclosure
- Blue Condominium – unit 3101 – 2 bedroom/2.5 bath (1,651 square feet) – This unit sold for $385,000, or $233 per square foot, on September 16, 2008. Short-sale
- Neo Vertika – unit 3119 – 2 bedroom + den/2 bath (1,255 square feet) – This unit sold for $225,000, or $179 per square foot, on September 5, 2008. Foreclosure
- Vue at Brickell – unit 2204 – 2 bedroom/2 bath (1,023 square feet) – This unit sold for $173,000, or $169 per square foot, on September 16, 2008. Foreclosure
- Parc Lofts – unit 208 – 1 bedroom/1 bath (1,255 square feet) – This unit sold for $220,000, or $174 per square foot, on September 9, 2008. Foreclosure
The Sub-$100K Brickell Condo Hits the Market
Prices have continued to fall hard at Vue at Brickell for quite some time. It’s incredible to think that in May 2007 when I wrote the post entitled, “Vue at Brickell – Overpriced or Insanely Overpriced“, the average price per square foot of condos listed in the building was over $550!
Yesterday evening, a 1 bedroom foreclosure at Vue at Brickell hit the market for $125 per square foot. With a list price of $99,900, it was the first one bedroom condo for sale in Brickell, built after 2000, to fall below the $100K mark.
[poll id=”2″]
Blue Condominium – 1 Bedroom/1.5 Bath Foreclosure – $229,000
I was stunned when I saw this foreclosure listing at Blue Condominium. $229,000 for a 1 bedroom condo at Blue Condominium!!! In 2006, this unit would have likely been priced for around $380,000. The MLS listing shows it to be a 1 bedroom/2 bath condo but I don’t think that information is accurate, unless the owner added a second full bathroom. It is most likely a 1 bedroom/1.5 bath condo. The listing also makes no mention of it being a foreclosure but I looked it up and it is owned by Deutsche Bank.
This is a great buy for someone who is looking to purchase a 1 bedroom condo in a high-end waterfront condo building in Miami. The location may not be that great (the northern end of Edgewater Miami) but that is already reflected in the price, in my opinion. If this condo sells for around $200,000 then we’re now talking break-even cash flow with 20 percent down. I haven’t heard the term “break-even cash flow” for quite some time. Is that where prices are headed? I think we all know the answer.
Take a look at the Blue Condominium rental listings to get an idea of the type of monthly rent that this condo would bring. Feel free to export the listings to Microsoft Excel by clicking the “Export” link at the top of the grid.
By the way, for those of you not local to Miami, the highway in the picture above takes you right into Miami Beach.
