One Hunter's Point and Hunter's View

Am I the only one looking into these buildings right now? That must be a bad sign.

shamrock - I was one of the original folks in contract back in 07. I am very familiar with this project. We did not close on our unit in Hunter's View due to construction defects. Even after several attempts by the sponsor to correct the problems, we decided it was better to walk than be saddled by poor construction. HV is probably about 30% closed, maybe more, I don't know for sure. I can say that walking past it at night ( I live elsewhere in the neighborhood ) there are not too many lights on at night. All the sales numbers I got from the brokers during the construction were inflated, although everybody does that. The residents of 1HP have gone public with the problems they are having with the LIRR train across the street. The LIRR idle diesel engines there. You should go by and check out the noise during the day. It's very loud. Some residents in the various articles that have been put out have claimed they hear the engines late at night/ wee small hours of the morning. I can't imagine why anyone would want to buy there with such public statements out there. To be fair, the north-facing units at 1HP are probably OK with noise if the windows are closed.

also, which brokers were you dealing with over there?

mwade, thanks for your feedback. We're considering the north facing units so the noise shouldn't be as much of an issue. We've been dealing with Patrick and Lena as the brokers. Any other insight is appreciated here from others considering buying or who have already bought....thanks!

Bump

what are they asking for 2 bdrms now? I looked thre some time ago but changed my mind as well due to the noise issue

2BR/2BA ranging from 530-615K it seems. Answers about pricing and what units are actually available seem to change with every conversation though. Seems like best price point in the area right now, although we're inclined to wait for the openings of the Murano and 10-17 Jackson

i was very interested in hv/1hp, but they were not flexible with pricing. i loved the buildings but i had a specific goal-1 bdrm for less then 400k, and they wouldn't come down that low this past summer. i am know under contract in another building in lic

i understand that the cheap pricing is appealing...but the building is just gross when compared to all the other buildings out there.

from what i saw at 1hp:
cheap interior doors, ugly floors, loud hvac units, lobby areas doesnt look nice at all. and 75K for parking?!

idk..but there is a lot of choices in the 2br space.

shamrock- I have no real problems with either Patrick or Lena. As with any broker, you have to ask direct questions and press them until you have a direct answer. It is never in their best interest to divulge information that is negative if they are not bound to do so. Don't be afraid to call their bluff. There are three new buildings soon to arrive to the market in LIC - the Murano, 10-17, and the Solarium ( name? ). 1HP is the cheapest built building in the area. Might also be the cheapest price, but I'd wait until the other buildings open their sales, assuming they don't go rental.

First of all, Lena is totally incompetent so avoid her (she is in love with her BB and will not even pay attention to you during anopen house). Secondly, they keep changing their minds about pricing and units; what's listed is different from what they will give you over email which will be different from what they will tell you over the phone...go figure! I have been there a few times recently to check out the units - the quality is sub-par, ugly bulkly air-conditioners that take up quite a bit of the available square footage-hence the prices seem attractive until they give you the final price higher than that's quoted. They are just bad inconsistent communicators trying to milk you at the end of the day...no wonder there were earlier reports of people in contract trying to get their money back! I'll wait for the other developments coming up. We've waited so long, and it's been worth it so far!

That's true about Lena. And sub-par construction.

mwade..first you tell shamrock "I have no real problems with either Patrick or Lena"....................
then you agree with JB32 that Lena is totally incompetent so avoid her. Which is it?? Your comments
are not very helpful. All I can say is that Patrick seemed ok (professional and consistent) when I was looking for info for a one bedroom. I have never dealt with Lena.

i also had the same problems of dealing with avail units. i went in to make an offer and was told the unit was not avail anymore. 2 weeks later it was avail. i gave up on this build and went elsewhere. i didnt have time for their games, and to be honest with you i am glad i went elsewhere.

Easy there SHC - I agree that Lena is in love with her BlackBerry. I was dealing with her and with Patrick in better times. They were not at the point of desperation they are no doubt at today. I wasn't negoitating prices with them, so I can't speak to that. I have no idea what the situation is with the current available inventory in either building as I officially walked away months ago. The noise and construction problems I mentioned I know first hand. I have the inspection reports to prove the first, and you can google the articles to read about the second. The problems others have described about getting two different answers to the same question is one I have experienced with them, but on different subjects than those discussed above. I don't have an issue with because it wasn't on such important issues and because that's what brokers do sometimes. Like I said, you have to ask direct questions and press them for a direct answer. If they contradict themselves, you have to call them on it. Otherwise, they will just run over you. They are always looking for leverage in negiotiating a deal, however subtle. Hey. If you don't trust them, then don't buy there.

FYI - just came across this. Joseph Simone, of Simone Development fame ( AKA the sponsor for Hunters Point Condos ) is mentioned in this article.
http://www.nydailynews.com/real_estate/2009/10/28/2009-10-28_developers_make_profit_from_city.html

To their credit both of the brokers have been incredibly accomodating to our schedules for showings. We also understand it's a business and tactics are used to make deals. Even with possible cheap construction issues the 2BR/2BA here definitely seem like good deals in the current environment. It's almost a push between waiting 1HP out and waiting for other builds to open up. Thx for all the input!

shamrock: Following up...did you move forward with a purchase in OHP?
Any one else following up on OHP recently have any comments? I hear the north side are selling OK but the south side is in trouble? Just looking to get a sense on the latest here...thanks!

Hey JB32: We have not...They have not responded to our offer after almost 3 weeks now. Judging from how things are being handled over there we'll continue looking into other buildings.

The south/north side difference makes a whole lot of sense even if they do get those engines turned off. It's just an ugly view compared to looking at the Village of Hunter's Point

Hmm..ok. Does anyone know if views from north side / village of hunters point around vernon blvd is protected? So many developments around there (Murano, OHP, 10-17 jackson, 10-50 jackson) with some units facing this part of town so wondering if this is the view to go for to be safe?

I found this condo to be shady with the pricing too! I thought it was strange they did not have a pricing/availability info online. The other condos in the area, the prices were clearly listed. At OHP, it was a sheet at the office. I guess it was subject to change on a moments notice. I was about to sign a contract, and my lawyer who is also a family friend advised me against it. He said it was not illegal, but not very nice, the way they amend the pricing/ prospectus based on each buyer.. something like that... Either way it was a new price that was amended after my offer. It was my first purchase, but I'm glad I did not move forward.

vis212: do you mean they amended your price (or in other words, increased it) after you put in an offer? That IS sneaky of them! I can understand, albeit with some hesitation, if developments that's like 50% sold doesn't publish lower pricing of remaining units, otherwise they will get shot by the current owners living there!! Any other reasons you decided not to purchase here or reasons your lawyer advised against it? It will be helpful to know from someone like you who has gone as far as almost signing the contract in the process. Thanks!

JB, yes, there were about 5-7 amendments of price increases that came with the prospectus when I was about to sign. Mine was one of the ones amended after my offer. My lawyer said it's not a dealbreaker, just not cool. I was annoyed and as he started to list the other things that had to be paid upfront in the first year in a startup condo.. I got frustrated, so I decided to cancel on the spot. I understand this is a business, and everyone wants to make or save a dollar, but it was shady to not have clear pricing information available. I think if you're a developer, and you're confident in the product you deliver, you wouldn't have to hide your price list.. But in the long run, it worked out way better, as I did not end up buying in 2008, especially reading the reviews of this place in particular.

Shamrock197 - you mentioned that there were construction defects in the building at HV. What kind of defects did you see or uncover in your inspection. I am in the process of signing a contract for a unit there and just wondering if I should just walk away rather than being saddled with the poor construction. Any feedback would be highly appreciated!!

Actually, I was the one who mentioned the construction defects at HV. I was in contract there from the very beginning, and am quite familiar with the project. I did not close on my unit and decided to walk away rather than be saddled with poor construction, as you say. I had 3 inspection reports written up by an certified building inspector that detailed major defects to the floors and ceilings due to the fact that the concrete slabs that form said floors and ceilings were poured wrong ( completely unlevel ) to begin with. Despite the sponsor's efforts to level the floors after the fact, they were still past the tolerance standard as set forth by the industry. In general, having seen the finished product and compared it to at least 7 other buildings in the neighborhood, I would say HV has the lowest level of finishes and quality in LIC. If you aren't sure, bring your own inspector to see the unit and know for yourself BEFORE you sign. Once you sign, there is not much you can do - take it from someone who's been there.

mwade - thanks for the comments. The levelling problem that you mentioned above, is it on all the floors in the building or certain floors. If you don't mind providing the details, may I ask you which floor were you considering to buy earlier.

We were on the 4th floor. Since our ceiling was the floor above, the 5th floor would have the same problem. I also observed the same problem in a different line apartment on the 3rd floor, which was so far off just at a casual glance that it was comical. While I cannot speak for each individual unit on the building, the folks that poured the 3rd, 4th, and 5th floors of the building also poured the rest of the building. I would proceed very cautiously with that in mind. Close examination also revealed poor installation of doors, closets, showers, etc. IMO, this building was done as cheaply as possible and I would not trust this building to hold up over time.

I agree with your comments...Considering there are problems on 3rd, 4th and 5th floors, there is a strong likelihood that the other floors in the building may have a similar floor/ceiling level problem as well. Regarding your comment that this building was done as cheaply as possible, it is no surprise then that the units are priced cheaper than comparative other new construction in the neighbourhood.

sounds like someone is holding a grudge against this building. his opinions sounds very bias and negative from his comments about lena to everything else,,,maybe because he had to walk away from his deposit. i went to check out this building and went through every floor. There seeemed to be leveling problems on 3, 4 and 5th floors. The other floors seemed fine. As for the cheap construction..i've seen worse in other buildings with cheaper appliances..
smalltown..what floor were you looking at..I was looking into signing on the 7th floor.

SHC, I am looking on the 8th floor. Did you already sign the agreement for unit on 7th floor? Looking at some of the comments above from other prospective buyers,they seem to be consistent with what mwade is saying. Overall, the message I am getting from this forum is that if pricing is your main focus, HV may be the cheapest in the neighbourhood but if you are concerned about the quality as well, you should look elsewhere.

I have no grudge against the building. Ironically, because we walked from the deal, we were able to get a better apartment in a different building in LIC and still come out ahead. If I have a negative opinion about the building, well, I have the inspection reports to back that up. Look, if you have signed a contract there and are happy, then good for you. I'm glad you didn't have the legal nightmare that we had. I think it's fair to say to anyone who is interested in HV to do your due diligence BEFORE you sign. If the apartment turn out to be sound, then live there and be well. Don't take my word for it. Don't take the broker's word for it. Bring an inspector and know what you are buying before you buy.

I'm also in the process of signing the contract, I'll definitely decide after I get back from
St. Marteen. But the price seems right, the common charges seem a little higher than the sister building OHP, construction seems ok, appliances are good and the 100sq ft of balcony and the views
of the city is fantastic.

Out of curiosity, what is the pricing there now? In 07 the pricing at HV and OHP was about 100-150/sq. ft. lower than a comp floor in the other developments for sale. Sometimes lower than that. Since closings in LIC in buildings like the Powerhouse, 5SL, and others seem to be coming in at low 600's on average, has HPC dropped their prices accordingly? Interesting to see the newly released pricing for Solarium on 48th ave. Pricing seems to be mid 600/sqft. With low common charges, that's a pretty competitve price. Wonder how buildings like HPC will respond to this new building. It will also be interesting to see pricing at the Murano ( right next to OHP ) and 10-17 Jackson.

In HV, the average pricing per sq. ft. is somewhere between upper 400s and lower 500s...It depends on a lot of factors such as the location in the building, manhattan views, 2 br vs 1 br etc.

OHP makes the list of top 20 NYC buildings where buyers are backing out..! That's no good!! Your thoughts with respect to OHP making this list?
http://therealdeal.com/newyork/articles/where-are-buyers-backing-out

JB32 - any thoughts on why the buyers are backing out? To me, it seems like buyers who entered into contracts back in 2007 at the full fair market value reflected in the offering plan have seen the prices of the similar units slashed 10 to 15% and as a result are disputing their contracts.

As a former contract holder, I was privy to the conversations of those that were trying to sue to get their deposit back. If these are the same people, they did indeed do this primarily due to the drop in property value, which at that time was 10-15%. Now it's more like 20-25%. The building was not finished at the time, so they did not sue ( as I was in the process of doing at HV ) due to poor quality of construction or feeling that they were misled about the train noise. At a certain point I was no longer a part of the Google group, so I can't say for sure how things proceeded. What does this mean for OHP and HV? The amount on the line listed in the article is not nearly as large as some of the other buildings. However, Simone Development is not a large company. Also, they are carrying two buildings at this time with many unsold units, not just one. There is no way to know how much this affects their bottom line right now. Of course, no one would freely admit they need this money to stay afloat. Just something to weigh in your decision.

Everyone, thanks for sharing some very useful information about both the OHP and HV condo building in this forum. I am starting to look at the units in both the buildings and just curious if anyone has looked into the possibility of chinese dry wall used in the construction at either of the buildings?

Any comments would be much appreciated!!!

mwade, you mentioned in one of your comments above that you got the unit at HV inspected and have 3 inspection reports. Did the inspector tested the dry wall for any contamination as a part of those inspections?

I am just curious if anyone has looked into this issue and can share some information???

i AM AMAZED BY SOME OF THE COMMENTS HERE FROM PEOPLE WHO CLAIM TO BE INTERESTED IN BUYING IN THIS BUILDING OF WHO CLAIM THEY SIGNED A CONTRACT AND THEN THE PRICE WAS INCREASED, AND A LAWYER ADVISED THEM AGAINST IT. NO DEVELOPER WOULD RAISE A PRICE WAS IT HAD BEEN AGREED UPON, BUT SUBSEQUENT AMENDMENTS TO THE OFFERING PLAN WOULD INCREASE THE LIST PRICE OF ALL APARTMENTS. MOST OFFERING PLANS HAVE NOW BEEN AMENDED TO ALLOW THE DEVELOPER TO NEGOTATE PRICES WITHOUT HAVING TO MAKE A FORMAL AMENDMENT.

WITH THE ABOVE SAID, I RECEIVED AN EMAIL FROM THIS BUILDING TODAY, INDICATING HTAT THE TWO BUILDINGS ARE NOW FHA APPROVED AND ONLY REQUIRE 3% DOWN. THEY ALSO SENT OUT AN AVAILAIBLITY LIST WHICH LISTED ONLY 3 2-BEDROOMS AVAIL IN WEACH OF THE TWO BUILDINGS. WHEN I CALLED TO ASK IF THERE WERE ANY OTHERS AVAIL, I WAS TOLD THE BUILDING IS CLOSE TO SOLD OUT. I SUSPECT THIS IS NOT TRUE. PEOPLE SHOULD BE AWARE OF THESE TATICS ON THE PART OF THE SALES OFFICE.

007 - My inspector did not test the drywall. There were plenty of other issues to deal with.

I walk by both buildings every day and there is no way they are almost sold out, esp. not HV. No way.

no news here, it was always known this development has shady agents, the available apt's changes based on who is asking

FHA approved requiring only 3% down? Great...this kind of incentive is what started the housing meltdown, people walking away, foreclosures...so now we're gonna see more of it!! I am happy renting for now and if I change my mind, there's another building coming up right next to it which I'm sure is not gonna get sold out anytime this year!!

http://streeteasy.com/nyc/building/one-hunters-point

What sales tactics?
One hunter's point looks to be almost sold out.

ericho75
35 minutes ago
ignore this person
report abuse http://streeteasy.com/nyc/building/one-hunters-point

What sales tactics?
One hunter's point looks to be almost sold out.

Are you serious? The listing you post are very different from teh email received yesterday from the Sales Office from Lena to be exact. Lena's listing claims to only have 3 2 bedrooms (not the one's in the listing you post, but, Apts 5A, 4E and 5M. 5M listed at 630,000, 4E at 565,000 and 5A 690,000. As for 1 bedrooms, she lists 2, 2N and 3J. 3J at 485,000 and 2N at 525,000.

So streeteasy does not have accurate listing. I assume the sales office has not been updating the public records.

These are the tactics I refer, they make up prices as they go along and try to not have them publicly avail.

These are very low prices, but after touring the building, the construction is poor, the noise is liud and the view is not that great.

But it is only 3.5% down on FHA, with up to 6% back as a seller concession. A good deal if you a really in need of an apartment and don't mind being almost on top of the tracks.

Ericho, the link shows 77 sales for OHP. If that is so, that's only 60% sold. There are 131 units. Plenty of units left.

Even more so for HV. How do I know? I saw the recent amendments for HV, which included unit sales thru Oct. 40% sold if I recall correctly. That's a little less than 30 units. Even if they have sold four or five a month ( greatly above the average for the neighborhood ) they also have plenty left. In addition, the amendment included the figures for the original construction loan, debt service payments to the loan, and carrying costs for the sponsor. If one were to add up the units sold from the original price schedule and adjust the remaining units for the recent closing prices, it would seem the best the developer could do is break even. Also, the loan mentioned was the original loan. The building did go 8 months over the projected time. Are these cost overruns reflected in the loan amount? Add in legal fees and brokers fees, and I don't see how they are turning any kind of profit.

The good news is that they said they haven't missed any payments to the bank. Since these docs get sent to the AG, I imagine that, at least, is the truth.

i believe jonsauerland is correct when he says streeteasy doesnt have an accurate listing, maybe cuz the sales office didnt update the public records. As for HV, as of Jan. it's around 60% sold because
we already elected the board of condos in Dec.09. Let's get our facts straight and not regurgitate outdated info. from Oct?????? As for the payments to the bank..no payments have been missed, and during the condo board meeting the financials were discussed and this building is operating very well with plenty on reserve. But thanks for your concern.....

I think the point is that they are not down to the last few units as some have been led to believe by the sales team.

so what was your point of discussing the financials of this building? And if you live in a different
building in LIC, why would you be even remotely interested in the amendments of this building not to mention the original construction loans, carrying costs, etc..?? If i had amendments to other buildings, i wouldnt care less for them except for mine. So what is your obssession with this building?

Every buyer should know the financials of a building before they buy. I am not interested in the amendments for HV - they sent them to me as I used to be a contract holder there. If you read the thread, you'll see what happened. If the building has great financials, then what's the worry?

why would they send the amendments to you if you walked away from your deposit? And if you came into contact with the amendments why would you even care or waste your time to get to know the financials of this building when you already bought into another building?

I don't know why they sent me the amendments. It was probably a mistake, since they should have taken my deposit out of escrow months ago. I read the amendments and referred the info to my lawyer to make sure there was nothing in there that pertained to me. Turns out, there wasn't, but that's why it's generally a good idea to read legal documents sent via certified mail.

Thanks for setting the record straight - 60% sold. Frankly, that's pretty good considering the circumstances.

mwade, I have no horse in this race, but you do seem obsessed with criticizing this building.
I met up with a friend who lives in OHP the other night, who said that apartments closed and scheduled closings (not contracts out, actual scheduled closings), are over 80%.

It's not obsession. I had a bad experience at this building for over 2 years. It cost me a lot of money, through no fault of my own. Naturally, I have a lot to say about it. The purpose of this forum is to share information and opinions. I've given my opinion on the building. Some people have had similar experiences which you can read in this thread. For others, it's been a good experience. Both opinions are valid. If you read my comments, I have never claimed the sponsor or the sales office were guilty of crimes against humanity. I've only argued the facts as I saw them. If you have better info, then please share so that buyers can make an informed decision.

This leg of the conversation started with false claims out of the sales office that there were only a few apartments left in each building. Does anyone here dispute that? I said streeteasy showed 60% sold in OHP. If your friend says 80%, then that's good news for OHP.

Does anyone know if HV has any train noise issue like OHP? I went there and saw an E line and B line on the 5th and 7th floors. I wonder if one can hear any train noise in the B line, facing Manhattan. E line faces the train track. thanks!

Depending on where you are at the building.
On Jackson, beside street noise it's fine. Facing the LIRR...that could be a problem.

mwade- thanks for sharing your personal experience. obviously those that criticize you have a vested interest in the building.

You're welcome. I don't blame them for getting on me about OHP or HV. Of course they have a vested interest - I would too if I lived there. I think every buyer should have a range of perspectives about a building before they buy there. Mine is only one, and let's face it, I never lived in the building. Take it for what it is. Learn from my mistake and BRING AN INSPECTOR before you sign anything. If it works out, great. If not, then you can move on.

And to be fair, I don't think the train is at all an issue for HV. The tracks next to the building are not the same ones that lead to/from the rail yard over by OHP. The track by HV seems to go under the intersection in front of the building and dead end at the edge of the empty lot across the street. Seems to be some kind of spill over track or something. Never saw or heard a train there ever. The street noise is what it is - I would check inside the apartment during business hours as that is when it seems to be the loudest.

mwade - I thought your personal experience was with HV. Are you saying that the construction in OHP is just as shoddy? Yes, the south side is facing LIRR and is subject to horrible humming from the trains (but a non-issue on the north side of the building), but is there anything else terribly wrong with OHP? For example, are there noise issues similar to the Powerhouse?

I have never stepped foot inside OHP, so I can't say. The only issue I know of there is the aforementioned train noise. All the construction issues I have discussed were with HV only. It is always good to bring an inspector before you close regardless of what other people have said about the building. Better you know for sure BEFORE you hand over the money. That goes for HV, OHP, or any other building you might buy in.

Purchasers try to get of out contracts; lose in Federal court; plan to appeal.

Romero v. Borden East River Realty LLC

U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Judge Allyne R. Ross

Decided: March 11; 09-cv-665

Plaintiffs in the instant actions are purchasers of pre-construction condominium units from the Defendant, Borden East River Realty, at One Hunters Point Condominium in Long Island City, New York. Plaintiffs filed individual complaints seeking to rescind their purchase agreements and obtain a refund of their deposits due to defendant's alleged failure to comply with the requirements of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§1701-1720 (2009) ("ILSA" or the "Act"). Defendants claim that the condominiums in question qualify for certain exemptions under the Act. Presently before this court are the parties' cross motions for summary judgment. For the reasons set forth below, plaintiffs' partial motion for summary judgment is denied and defendants' motion for summary judgment is granted.

BACKGROUND

The following facts are undisputed and, unless otherwise noted, are found in the parties' Joint Statement of Undisputed Material Facts. (No. 09-cv-665, Dkt. No. 32.)

Borden East River Realty LLC ("Borden East") is the sponsor of the condominium development at 5-49 Borden Avenue, Long Island City, New York, known as Hunters Point Condominium ("Hunters Point"). Joseph Simone, the individual defendant, is identified as the principal of Borden East. On September 11, 2007, a New York State Offering Plan (the "Offering Plan") was filed with the New York State Attorney General's Office on behalf of Hunters Point which indicated that the condominium would consist of 132 residential units, twenty-six roof terrace units, and twenty-five parking space units, all of which were open for sale to the general public after the filing date.

Plaintiffs commenced their purchases of uncompleted units in the condominium in October 2007. Plaintiffs John Gaenzler and Sara Moscoco Gaenzler (the "Gaenzlers") signed a contract to purchase units 7D and R17 on October 18, 2007 for $718,885 and paid a deposit of $71,885. Plaintiff Anthony Allicino ("Allicino") signed a contract to purchase unit 6L on October 25, 2007 for $604,410 and paid a deposit of $60,410. Plaintiff Kyung Yeol Shin ("Shin") signed a contract to purchase unit 4M on October 31, 2007 for $755,800 and paid a deposit of $75,580. Plaintiff Zack Ferguson-Steger ("Ferguson-Steger") signed a contract to purchase unit 3J on November 1, 2007 for $494,462 and paid a deposit of $49,462. On November 29, 2007, plaintiff Lora Kaye ("Kaye") signed a contract to purchase units 2E and Rooftop 1 for $666,000 and paid a deposit of $66,600. Also on that date, plaintiffs Julie and David Lieve (the "Lieves") signed a contract to purchase unit 10K for $965,300 and paid a deposit of $96,530. On December 19, 2007, plaintiffs Daniel Romero and Joann Raguso ("Romero and Raguso") signed a contract to purchase unit 4M for $755,800, and paid a deposit of $75,580. Finally, Plaintiffs William Lee and Szuyu Pan ("Lee and Pan") signed a contract to purchase unit 6D on November 7, 2008 for $672,380 and paid a deposit of $67,238.00. Prior to executing their contracts to purchase units in Hunters Point, plaintiffs were provided with a copy of the Offering Plan.

The Hunters Point project is promoted under one "common promotional plan" with a separate condominium development known as Hunters View Condominium ("Hunters View"), located at 48-15 11th Street, Long Island City, New York. 11/49 Realty Company, LLC ("11/49") is the sponsor of the Hunters View project, and a New York Public Offering Plan was filed with the New York Attorney General's Office on September 11, 2007 ("Hunters View Offering Plan"). Hunters View consists of seventy-two residential units, fifteen roof terrace units, and thirty-seven parking space units, all of which were open for sale to the general public after the filing date.1

Between January 26, 2009 and April 16, 2009, plaintiffs' counsel sent eight letters to defendant Simone notifying him of the plaintiffs' decision to exercise "their right to terminate the Purchase Agreement" based upon "a complete failure… to comply with the requirements of" ILSA. See, e.g., Letter to Joseph Simone, Apr. 16, 2009, No. 09-cv-665, Dkt. No. 31-3. Plaintiffs claimed that since Borden East failed to comply with the terms of the Act, they were entitled to rescission of their purchase agreements and return of their deposits.

Defendants do not dispute that when the Offering Plans for both Hunters Point and Hunters View were filed on September 11, 2007, Borden East and Mr. Simone had never heard of ILSA, made no reference to the Act or its regulations in the Offering Plans, made no reference to the Act in any of the purchase agreements, and had no plan in effect for sales in either Hunters Point or Hunters View to become exempt from the requirements of ILSA. Defendants became aware of ILSA around December 2007, but initially believed that by filing the Offering Plans for Hunters Point and Hunters View with the New York State Attorney General, they provided all the necessary disclosure. After receiving the first of plaintiffs' letters dated January 26, 2009, they began to more fully investigate the allegations of ILSA violations. Defendants also concede that they did not file a statement of record with the federal Department of Housing and Urban Development ("HUD"), or provide plaintiffs with a written property report prior to execution of their purchase agreements.

Borden East received a Temporary Certificate of Occupancy ("TCO") on February 17, 2009 for Hunters Point.2 One unit was sold on the date the TCO was issued, and fifty-seven residential units were unsold. 11/49 received a TCO for the Hunters View project on March 12, 2009. At that point, forty-seven residential units were unsold, and one unit which had previously been sold, was sold to someone who purported to have acquired it for purposes of resale and lease. Based on the number of unsold residential units, Borden East and 11/49 determined that the combined Projects were exempt from ILSA's requirements under a combination of three listed exemptions: the Hundred Lot Exemption, 17 U.S.C. §1702(b)(1), the Improved Lot Exemption, 15 U.S.C. §1702(a)(2), and the sale to a person for purpose of resale under 15 U.S.C. §1702(a)(7).

On March 6, 2009, defendants received an inquiry from HUD as to the Projects' compliance with ILSA. Defendants responded to the inquiry on April 2, 2009, and on April 14, 2009, they requested that their response also be treated as a request for an advisory opinion from HUD as to whether Hunters View and Hunters Point were exempt from the registration requirements of ISLA.3 Based on the number of units sold at the time the TCOs were issued, defendants asserted that only ninety-eight units were sold within the meaning of ILSA, and thus the Projects were exempt from the Registration Statement and Statement of Record requirements.

On July 15, 2009, HUD issued an advisory opinion finding that parking units and rooftop units needed to be counted as "lots" sold for purposes of the Hundred Lot Exemption. Therefore, HUD determined that the projects were not exempt from ILSA's registration requirements. (July 15, 2009 Advisory Opinion, Defs.'Ex. J.) Two days later, on July 17, 2009, HUD issued another advisory opinion that did not include the parking units and rooftop units in the calculation of units sold, and determined that the projects were exempt from registration under the applicable exemption. (July 17, 2009 Advisory Opinion, Defs.'Ex. K.)

On February 18, 2009, the first of the plaintiffs, Daniel Romero and Joann Ragusa, filed their complaint. On May 14, 2009, all eight cases were reassigned to me as related cases. The parties now cross-move for summary judgment on the proper interpretation of ISLA, that is,

whether the projects are exempt from the Act's registration and disclosure requirements.4

DISCUSSION

A. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings, depositions, answers, interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56(c). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The substantive law determines the facts that are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

When considering cross-motions for summary judgment, a court "'must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Hotel Employees & Rest. Employees Union, Local 100 of N.Y. v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)). In the case at hand, the underlying facts are not in dispute, and the matter turns on the proper interpretation of ILSA.

B. The Interstate Land Sales Full Disclosure Act

 1. The Act's Requirements and Exemptions

The Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§1701-1720 (2009) was enacted as part of the Housing and Urban Development Act of 1968, Pub.L. No. 90-448, Title XIV, 82 Stat. 590 (1968), and was amended in 1979. See Pub.L. No. 96-153, Title IV, 93 Stat. 1122 (1979). The Act was "designed to prevent false and deceptive practices in the sale of unimproved tracts of land by requiring developers to disclose information needed by potential buyers." Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776, 778, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1978). Although the Act's primary purpose is to "protect purchasers from unscrupulous sales of undeveloped home sites," it also applies to the sale of developed land, including the sale of condominiums. See Winter v. Hollingsworth Props., Inc., 777 F.2d 1444, 1447-48 (11th Cir. 1985). The Act makes it unlawful for a developer of a covered "subdivision" to "to sell or lease any lot unless a statement of record with respect to such lot is in effect ... [and] a printed property report… has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser or lessee." 15 U.S.C. §1703(a)(1); see also 24 C.F.R. §1710.3.5

Unless an exemption applies, the developer must provide the property report to the purchaser prior to executing the purchase agreement. 15 U.S.C. §1703(a)(1) (B). When a developer fails to provide the report, the purchaser may revoke his contract within two years from the date of signing, id. §1703(c), and may be entitled to a return of any monies paid pursuant to the agreement. Id. §1703(e). The purchaser's right of revocation must be acknowledged in the purchase agreement. Id. §1703(c).

The applicable exemptions under the Act fall into two categories: (1) full statutory exemptions, found in 15 U.S.C. §1702(a), which discharge a developer from the Act's disclosure and registration requirements as well as its antifraud provisions; and (2) partial statutory exemptions, found in 15 U.S.C. §1702(b), which discharge a developer from the Act's disclosure and registration requirements, but not its anti-fraud provisions. One of the exemptions at issue, the Hundred Lot Exemption, 15 U.S.C. §1702(b)(1), provides in pertinent part:

Unless the method of disposition is adopted for the purpose of evasion of this chapter, the provisions requiring registration and disclosure ... shall not apply to the sale or lease of lots in a subdivision containing fewer than one hundred lots which are not exempt under [§1702(a)].

15 U.S.C. §1702(b)(1). Another exemption at issue, the "Improved Lot Exemption," is available under §1702(a) and exempts "the sale or lease of any improved land on which there is a residential, commercial, condominium, or industrial building, or the sale or lease of land under a contract obligating the seller or lessor to erect such a building thereon within a period of two years." 15 U.S.C. §1702(a)(2). Finally, 15 U.S.C. §1702(a)(7) exempts "the sale or lease of lots to any person who acquires such lots for the purpose of engaging in the business of constructing residential, commercial, or industrial buildings or for the purpose of resale or lease of such lots to persons engaged in such business." 15 U.S.C. §1702(a)(7). The exemptions apply "unless the method of disposition is adopted for the purpose of evasion" of the Act. 15 U.S.C. §1702(a), (b).

Essentially, by combining the Hundred Lot Exemption, §1702(b)(1), and the Improved Lot Exemption, §1702(a)(2), defendants claim that the projects are exempt from the Act's registration and disclosure requirements.6 Defendants assert that because fewer than one hundred uncompleted residential units were sold at the time the TCOs were issued for the projects, and because the remaining units were sold as completed units or units "under contract obligating the seller or lessor to erect such a building… within a period of two years," 15 U.S.C. §1702(a)(2), the Act's exemptions apply. Plaintiffs' primarily argue that the developer's compliance with ILSA is measured at the time the purchase agreement is executed, not when the TCO is issued. Plaintiffs thus claim that defendants cannot "piggyback" the exemptions to evade the Act's requirements. Additionally, plaintiffs argue that the Condominium's roof terrace and parking units should be counted as "lots" under the Fewer Than 100 Lot Exemption. Plaintiffs assert that because the developers failed to comply with ILSA, they are entitled to their statutory right of rescission of their purchase agreements and return of their deposits.

 2. A Plain Reading of the Statute Does Not Preclude the Combination of Exemptions at Issue

"Statutory interpretation always begins with the plain language of the statute, assuming the statute is unambiguous." Universal Church v. Geltzer, 463 F.3d 218, 223 (2d Cir. 2006), cert. denied, 549 U.S. 1113 (2007). When a court determines that the language of a statute is unambiguous, "the sole function of the courts is to enforce it according to its terms." United States v. Hasan, 586 F.3d 161, 167 (2d Cir. 2009) (citing United States v. Kozeny, 541 F.3d 166, 171 (2d Cir. 2008).

The text of §1702(b)(1) states that ILSA's registration and disclosure requirements do not apply to "the sale or lease of lots in a subdivision containing fewer than one hundred lots which are not exempt under [ §1702(a) ]." 15 U.S.C. §1702(b)(1). In a recent case in the Southern District of New York, a court found ILSA's language at issue to be clear. Bodansky v. Fifth on the Park Condo, LLC, 2010 WL 334985, at *4 (S.D.N.Y., January 29, 2010). The court found:

The plain meaning of the text is that as long as the "subdivision" contains "fewer than one hundred" non-exempt lots, then the Act's registration and disclosure requirements do not apply to the sale of lots in that subdivision. Thus, the Hundred Lot Exemption can still apply to a subdivision containing one hundred or more lots as long as all lots sold above the ninety-nine non-exempt lots maximum will be covered by a §1702(a) exemption. For instance, the Hundred Lot Exemption applies where a developer contracts to sell up to ninety-nine non-exempt lots in a 200-lot subdivision, but will sell the remaining 101 lots either as improved lots or pursuant to contracts obligating the developer to improve the lots within two years.

Id. at *4.

I find no reason to disagree. A plain reading of the statute does not support plaintiff's position that compliance with the Fewer Than 100 Lot exemption is measured at the time the purchase agreement is signed. As in Bodansky, plaintiffs point to nothing in the text of ILSA to suggest that eligibility for the Fewer Than 100 Lot exemption must be determined prior to the sale of any of the first ninety-nine lots. Id. The statute simply exempts from registration and disclosure the sale of lots in a subdivision in which there are fewer than one hundred lots which are not otherwise exempt under §1702(a). It says nothing about the applicable timing of the exemption, or the need for the developer to have a disclosed "plan" in place at the time the first ninety-nine lots are sold.

Congress did include timing requirements in other exemptions under §1702(b), but made no such reference in the exemption at issue. See §1702(b)(2) (providing an exemption for "the sale or lease of lots in a subdivision if, within the twelve-month period commencing on the date of the first sale or lease of a lot in such subdivision… not more than twelve lots are sold or leased…"); §1702(b)(5)(E) ("at the time of closing…"). The absence of a timing requirement in §1702(b)(2) "demonstrates that Congress did not intend such a limitation to be read into the Hundred Lot Exemption." Bodansky, 2010 WL 334985 at *5 (citing McInerny v. Rensselaer Polytechnic Institute, 505 F.3d 135, 138 (2d Cir. 2007) ("It is a general principle of statutory construction that when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is presumed that Congress acts intentionally and purposely.")). While courts have found that ILSA is a remedial statute intended to protect consumers and requires ambiguities concerning exemptions to be construed narrowly, Gentry v. Harborage Cottages-Stuard, LLLP, 602 F. Supp. 2d 1239, 1248 (S.D. Fla. 2009), no ambiguity in the Hundred Lot Exemption exists given Congress' omission of a timing requirement or requirement that the developer disclose at the time of purchase what other exemption it intends to utilize for any lots outside the Hundred Lot Exemption.

The cases cited by the plaintiff are unpersuasive on the issue of statutory interpretation. In 200 East Partners, LLC., v. Gold, 997 So.2d 466, 469 (Fla. App. 4 Dist. 2008), a Florida state court found that sales agreements for the sixteen apartments sold in excess of ninety-nine units could not be modified to comply with the improved lot exemption after the sale of the initial ninety-nine units. The court, however, did not base its holding on the plain language of the exemptions as laid out in the statute, rather, it relied on its reading of the Guidelines issued by HUD, which are discussed below. Additionally, in Ahn v. Merrifield Town Center Ltd., 584 F. Supp. 2d 848 (E.D. Va. 2008), the court examined the portion of the Improved Lot Exemption allowing developers to exempt lots where the seller agrees to complete the dwelling within two years. The court found that triggering event for the two-year period was the buyer's signing of the sales contract. Ahn, 584 F. Supp. 2d at 853. This analysis makes sense given that the Improved Lot Exemption applies to those plaintiff's specific units, and the very point of the exemption is to notify buyers that their lots will be completed in two years. This analysis, however, does not shed light on whether a developer can utilize the Hundred Lot Exemption and the Improved Lot Exemption without notifying the buyers of units whose lots fall under the Hundred Lot Exemption at the time of their purchase agreements.

3. The Applicable Regulations and HUD Guidelines Support the Plain Reading of the Statute

Once a statute is found to be unambiguous, deference to an agency's interpretation of the statute is not necessary. See United Airlines, Inc. v. Brien, 588 F.3d 158, 172 (2d Cir. 2009) ("Deference to an agency's statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent." (citing Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004)). Nevertheless, as the court in Bodansky found, the interpretation of the Hundred Lot Exemption discussed above is consistent with the regulations issued by HUD. Bodansky, 2010 WL 334985 at *5.

In accordance with 15 U.S.C. §1718, HUD has promulgated regulations as well as interpretive guidelines for ILSA and the relevant exemptions. See 15 U.S.C. §1718. The Hundred Lot Exemption is set forth in 24 C.F.R. §1710.6, which reads, "the sale of lots in a subdivision is exempt from the registration requirements of the Act if, since April 28, 1969, the subdivision has contained fewer than 100 lots, exclusive of lots which are exempt from jurisdiction under" §1710.5, the regulation covering the Improved Lot Exemption. 24 C.F.R. §1710.6. As the court in Bodansky points out, there is no requirement in the regulation that the determination of which units in a condominium are "exempt from jurisdiction under §1710.5" occur at the time of the sale of a particular lot. Bodansky, 2010 WL 334985 at *5.

Additionally, according to the regulations, a developer's eligibility for exemptions under ILSA is "self-determining," 24 C.F.R. §1710.4(d), that is, a "developer is not required to file notice with or obtain the approval of [HUD] in order to take advantage of an exemption." Id.; see also Bodansky, 2010 WL 334985 at *5. This regulatory scheme supports the conclusion that under the statute, a developer need not disclose the intent to utilize an exemption or combination of exemptions at the time of the purchase agreements for the first ninety-nine lots sold. Id. at *6.

The parties also disagree on the proper interpretation of HUD's "Guidelines" for exemptions under ILSA. These guidelines "clarify agency policies and positions with regard to the exemption provisions of [ILSA] and its implementing regulations." See Guidelines for Exemptions Available under the Interstate Land Sales Full Disclosure Act, 61 Fed.Reg. 13,596, 13,601 (Mar. 27, 1996). While guidelines "are not formally promulgated as regulations, such agency publications are at least a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Conroy v. New York State Dept. of Correctional Services, 333 F.3d 88, 95 (2d Cir.2003) (citation omitted); see also Bodansky, 2010 WL 334985 at *6.7

The guidelines offer several illustrations, including the following:

For example, a developer of a subdivision containing a total of 129 lots since April 28, 1969, qualifies for [the Hundred Lot Exemption] if at least 30 lots are sold in transactions that are exempt because the lots had completed homes erected on them. The 30 exempt transactions may fall within any one exemption or a combination of exemptions noted in [24 C.F.R.] §1710.5 [including the Improved Lot Exemption] ... and may be either past or future sales. In the above example, the developer also could qualify if twelve lots had been sold with residential structures already erected on them, nine lots had been sold to building contractors and at least nine lots were reserved for either the construction of homes by the developer or for sales to building contracts. The reserved lots need not be specifically identified.

Developers of subdivisions containing more than 99 lots who wish to operate under this exemption must assure themselves that all lots in excess of 99 have been and will be sold in transactions exempt under 24 CFR 1710.5 (b) through (h). The sale of more than 99 lots in transactions not exempt under §1710.5 (b) through (h) would nullify this exemption for prior and future sales and might result in prior sales being voidable at the purchaser's option.

61 Fed. Reg. 13596, 13604 (emphasis added). Because the lots in excess of ninety-nine sold pursuant to another applicable exemption may be past or future sales, and because such lots need not be specifically identified, this illustration suggests that HUD does not require that the Hundred Lot Exemption be determined at the time of a sale of a particular lot in a subdivision. See Bodansky, 2010 WL 334985 at *6. Instead, developers must simply "assure themselves" that all lots in excess of ninety-nine fall under another applicable exemption, such as the improved lot exemption, and neither the HUD regulations or guidelines require this assurance to come at the time of the purchase agreements are executed.

The parties also disagree on the appropriate weight to give HUD's two Advisory Opinions issued specifically for the projects at issue. The July 17, 2009 Advisory Opinion was cited by defendants in Bodansky, where the court found that "[a]dvisory opinions, unlike regulations produced pursuant to 'a formal adjudication or notice-and-comment rulemaking,' do not have 'the force of law.'" Id. at * 7, n. 12 (citing Christensen v. Harris County, 529 U.S. 576, 587 (2000)). The court also found that "interpretations contained in an advisory opinion 'are entitled to respect…, but only to the extent that those interpretations have the power to persuade.'" Id. (citations omitted). The court in Bodansky did not consider the July 17, 2009 HUD advisory opinion because it found that HUD failed to explain its reasoning, and regardless, the court found the text of §1702(b)(1) to be unambiguous. Id.

As discussed above, I also find the text of the relevant statutory exemption to be unambiguous, and thus need not reach the issue of whether the HUD Advisory Opinions are entitled to weight on the issue of when applicability of the exemption is measured. While both Advisory Opinions assume that the Hundred Lot Exemption and the Improved Lot Exemption can be combined, and only differ on the issue of whether the parking spaces and roof terrace units are "lots" for purposes of the exemptions, neither opinion explains its reasoning or analysis of the statute or regulations that set forth the exemptions. Thus, the opinions have not factored into my conclusion that the applicability of the Hundred Lot Exemption is not measured at the time of the purchase agreements.

4. The Use of Two Applicable Exemptions is Not "Purposeful Evasion" of ILSA

Plaintiffs also contend that the defendants utilized the combination of the Hundred Lot Exemption and the Improved Lot Exemption for "the purpose of evasion" of ILSA's requirements in violation of §1702. Plaintiffs argue that defendants did not know about ILSA's requirements until plaintiffs' rescission letters, and thus cannot now assert that the use of the two defenses constitutes a "legitimate business purpose" that some courts have required for qualification of an exemption. See, e.g., Gentry, 602 F. Supp. 2d at 1248; Double AA Intern. Inv. Group, Inc. v. Swire Pacific Holdings, Inc., 2009 WL 4825097, at *11 (S.D. Fla. Dec.15, 2009).

Like the court in Bodansky, I find that defendants have not adopted the exemptions at issue for the purposes of evading ILSA's requirements. It is difficult to imagine how the defendants adopted such a plan if they were in fact unaware of ILSA's requirements prior to receipt of the first plaintiff's rescission letter in January of 2009. Once defendants learned of ILSA's requirements, their efforts to comply with the Act and its exemptions should not be read as purposeful evasion. Bodansky, 2010 WL 334985 at *8. Additionally, since the remaining units were sold following the issuance of a TCO, the only possible "method of disposition" for the remaining units was and is to sell them as improved units, which are exempt under §1702(a)(2). This is the case even if this "method of disposition" was not originally specified in a formal and disclosed "plan." Id.

5. Parking Units and Roof Terrace Units Are Not "Lots" Under ILSA

Plaintiff's final argument is that defendants failed to account for the sale of twelve roof terrace units and parking units that were sold prior to the issuance of the TCO, and that these units count as "lots" for purposes of the Hundred Lot Exemption. If such units are counted as separate lots, then defendants would be required to add the twelve sales to the ninety-eight residential units sold, rendering the Hundred Lot Exemption unavailable. Defendants concede that each roof terrace and parking space unit available at Hunters Point and Hunters View has a separate block and lot, that roof terrace units and parking spaces are taxed separately from any residential unit, that such units are not directly adjacent to residential units, and that any purchaser of a roof terrace unit or parking space unit may sell or convey the unit to another residential unit owner. For the reasons discussed below, I find that the roof terrace units and parking units are not "lots" for purposes of the Hundred Lot Exemption.

Lot is not defined anywhere in ILSA. The Regulations, however, define "lot" as "any portion, piece, vision, unit or undivided interest in land… if the interest includes the right to the exclusive use of a specific portion of the land." 24 C.F.R. §1710.1(b). As discussed above, courts have found that residential condominium units are "lots" under the statute. These courts have found that:

The Act accomplishes [its] goal by including within it all sales of lots and then exempting a number of transactions, including sales of fully improved property. It is reasonable to conclude, as HUD did, that the term "lot" was used to refer generally to interests in realty. The legislative history supports this construction, employing the terms "lot," "land," and "real estate" in discussing the Act. This construction is also reasonable in terms of the purpose of the statute. A fraudulent out-of-state sale of land is not rendered any less fraudulent if the condominium form of ownership is utilized.

Winter v. Hollingsworth Properties, 777 F.2d 1444, 1448 (11th Cir. 1985) (footnote omitted); see also Beauford v. Helmsley, 740 F.Supp. 201, 209-10 (S.D.N.Y. 1990).

In Trotta v. Lighthouse Point Land Co., LLC, 551 F. Supp. 2d 1359, 1363 (S.D. Fla. 2008), rev'd on other grounds, 319 Fed.Appx. 803, 805 n. 2. (11th Cir. 2008), the district court examined the issue of whether storage units were "lots" for purposes of the Hundred Lot Exemption. The court first discussed the purpose of ILSA and the Hundred Lot Exemption, stating that "because the ILSA is intended to protect homebuyers…, its exemptions for small developments are most naturally interpreted as related to the number of homes for sale in a particular development." Trotta, 551 F. Supp. 2d at 1363 (emphasis added). The court further stated that through the Hundred Lot Exemption, "Congress demonstrated a sensitivity to the size of the development it was regulating." Id. The court concluded that a "development does not become meaningfully larger, in the sense that consumers are more likely to need regulatory protection from sophisticated sellers, merely because interests in storage spaces (or parking spaces) are sold along with the residential units." Id. at 1363. On appeal, the Eleventh Circuit reversed the district court's finding of another ISLA violation, but specifically found "no merit" in the argument that the project contained more than one hundred lots. Trotta, 319 Fed.Appx. at 805 n. 2.

In this case, sales of residential units and the roof terrace and/or parking spaces were made by single contracts, and if the purchases had been closed, the buyers would have received a single deed. (Pls.'s Ex. 11, 13; Joint Statement of Facts ¶9.) Additionally, under the Offering Plan and By-laws, buyers are only permitted to convey their interest in roof terrace units to other residential unit owners within Hunters Point, and are restricted to conveying their parking spaces to residential unit owners in either Hunters Point or Hunters View.8 (Condominium Offering Plan for One Hunters Point, Defs.' Ex. P. at 24, 90; By-Laws of One Hunters Point Condominium, Defs.' Ex. P at 322.) Plaintiffs argue that the defendant, as Sponsor, is permitted to sell unsold parking and residential units to buyers "other than a Residential Unit Owner." Because of conflicting sections of the Offering Plan, it is not clear that the defendant can in fact sell roof terrace units and parking spaces to non-Residential Unit owners.9 Even if the defendants were permitted to do so, however, defendants' purchaser would not in turn be permitted to sell to any interested buyer. Rather, he would be restricted under the Offering Plan and By-Laws to selling only to an owner or purchaser of a residential unit. Additionally, there is no indication that any of the twelve parking spaces or roof terrace units sold prior to the issuance of the TCO were sold independently of residential units.

Given the restrictions on conveyance for parking units and roof terrace units, theses units have no functional or practical existence separate from a residential unit, such that purchasers are entitled to greater protection under the Act. As the district court in Trotta stated, "[i]t would not make sense to extend the partial exemption contained in §1702(b) to a building with sixty condominium units, but deny the §1702(b) exemption to that same building if each unit owner also had the right to use a particular storage space or parking space." The mere fact that the roof terrace units and parking units have separate legal descriptions, and owners are able to convey them to other residential unit owners or purchasers does not alter this conclusion.

Plaintiffs rely on Giralt v. Vail Village Inn Accoc., 759 P.2d 801, 808 (Colo. Ct. App. 1988) for support. In Giralt, a Colorado state court stated that "since the parking units are interests in real estate and a form of ownership of space to which the owners have the right to exclusive use, we conclude they are lots within the meaning of the Act." Giralt, 759 P.2d at 808. However, as defendants point out, in Giralt, the developer's declaration stated that the project was "divided into 141 condominiums (including the 107 parking condominiums)," parking units were sold separately to outside purchasers rather than as ancillary amenities, and there was no indication that owners of parking spaces had any restrictions on conveyance. Id., see also Defs.' Answering Decl. in Support of Mot. for Summary Judgment ¶8.10

The parties again disagree on the relevance of the two HUD Advisory Opinions on the issue of parking and roof terrace units. In the July 15, 2009 Opinion, HUD indicated that "the Declaration creates the parking space units and roof top terraces as separate and distinct units and therefore should be counted along with the residential units for the purpose of the 100 lot exemption." (July 15, 2009 Advisory Opinion, Defs.'Ex. J.) In the July 17, 2009 Opinion, HUD acknowledged the existence of the parking space units and roof terrace units, but did not discuss their status as "lots" when determining that the projects are exempt from ILSA's requirements based on the sale of ninety-eight residential units. (July 17, 2009 Advisory Opinion, Defs.'Ex. K.) While the latter opinion would seem to overrule the former,11 because HUD did not explain its reasoning for the exclusion of the parking spaces and roof terrace units in counting the number of "lots" sold pursuant to the Hundred Lot Exemption, I have not considered the Opinion persuasive on the matter, and rely simply on the reasoning set forth above. See Christensen v. Harris County, 529 U.S. 576, 587 (finding that interpretations contained in an advisory opinion "are entitled to respect…, but only to the extent that those interpretations have the power to persuade.") (citations omitted).

Because of the restrictions on conveyance for parking units and roof terrace units, I find that these units have no practical existence independent from the residential condominium units. The existence of the roof terrace and parking units thus does not warrant removing the projects at issue from the Hundred Lot Exemption.

CONCLUSION

Defendants' projects are exempt from ILSA's registration and disclosure requirements pursuant to the Hundred Lot Exemption, 15 U.S.C. §1702(b)(1), and the Improved Lot Exemption, 15 U.S.C. §1702(b)(2). Plaintiffs' motions for partial summary judgment seeking rescission of their purchase agreements, return of their deposits, and interest and attorneys' fees are denied. Defendants' motions for summary judgment are granted. The Clerk of Court shall enter judgment in each captioned case accordingly.

SO ORDERED.

1. Hunters View initially consisted of seventy-three residential units. Units 8A and 8B were subsequently combined into a single unit, however, and pursuant to the tenth amendment to the Hunters View Offering Plan filed on or about March of 2008, the number of offering units was reduced to seventy-two, and unit 8A/8B was sold as a single unit.

2. A TCO is issued when a unit can be legally occupied.

3. Additional written submissions were made in response to HUD requests on April 23, 2009, May 18, 2009, and May 29, 2009. (Defs.' Ex. D, E, F, G, H, I.)

4. Plaintiff's motion for partial summary judgment is against Borden East only. (Pls.' Br. in Support at 2, n.1.)

5. "Subdivision" under the Act is defined as "any land which is located in any State or in a foreign country and is divided or is proposed to be divided into lots, whether contiguous or not, for the purpose of sale or lease as part of a common promotional plan." 15 U.S.C. §1701(3). "Common promotional plan" is defined as "a plan, undertaken by a single developer or a group of developers acting in concert, to offer lots for sale or lease." Id. §1701(4). Defendants concede that Hunters Point and Hunters View are promoted under one common promotional plan as defined by §1701(4).

6. Plaintiffs do not allege that defendants violated any of the Act's anti-fraud provisions. Thus, these provisions are not at issue.

7. The court in Bodansky also noted that the HUD Guidelines for ILSA were not simply promulgated by HUD in an informal process, but went through a public comment and review process similar to that for regulations. Bodansky, 2010 WL 334985 at *6, n. 11 (citing 49 Fed.Reg. at 31,375).

8. Plaintiffs argue that the Thirteenth Amendment to the Offering Plan expanded the ability of parking space unit purchasers to sell to purchasers "located outside the building in which their residential unit was located." (Pls.' Br. in Opp. at 31.) However, the Amendment only permits the conveyance to "the then present owner, or a pending purchaser, of a residential unit at Hunters View Condominium," not any interested buyer. Amendment No. 13 to the Offering Plan, No. 09-cv-665, Dkt. No. 26-29, at 5 (emphasis added).

9. In the section titled "Rights and Obligations of Unit Owners," the Offering Plan does state that the "restrictions on the sale or conveyance of a Roof Terrace Unit [or Parking Space Unit] shall not apply to Sponsor," and that the sponsor "shall be free to sell or convey a Parking Space Unit [or Roof Terrace Unit] to other than a Residential Unit Owner." (Condominium Offering Plan for One Hunters Point, Defs.' Ex. P. at 90.) In the section titled "Description of Property and Improvements," however, the Offering Plan states that Roof Terrace Units and Parking Space Units "may only be owned by Sponsor and Residential Unit Owners. Thus, a Purchaser cannot purchase a Roof Terrace Unit [or Parking Space Unit] without a concomitant purchase of a Residential Unit." (Condominium Offering Plan for One Hunters Point, Defs.' Ex. P. at 24.)

10. Defendants submitted an affidavit from a named defendant in Giralt, stating that it was the intention of the sponsor to permit the sale of Parking Units to individuals or entities other than the owners of residential condominium units of the property, and that "some of the Parking Units in Village Inn Plaza have been sold to individuals or entities which do not own residential condominiums, and continue to be sold and resold to this day." (Defs.' Answering Decl. in Support of Mot. for Summary Judgment ¶8.) As plaintiffs have not opposed defendants' affidavit with respect to the parking lots at issue in Giralt, the facts recited therein are undisputed for purposes of these cross-motions.

11. In an email dated July 23, 2009 in response to an inquiry, a Consumer Protection Compliance Specialist at HUD indicated that "the July 17, 2009 Advisory Opinion is to be considered the most current Advisory Opinion on the matter." (Defs.' Ex. L.) HUD currently lists the projects as "exempt" on its website. (Joint Statement of Facts ¶39.)

Hi all - can anyone share the $/SF of any recently accepted offers at either of the Hunters buildings? (More recent than the closed sales on here, obviously.) Thanks!

any recent prices/sq ft at One HP? what are recent sales like?

HV has sold a bunch of units over the past 2 months. There are only 11 units left at this point. I am about to close any day myself.

azalin - we are currently negotiating our contract, but our lawyer has had trouble meeting with Tauber realty, and is coming back to us with a list of red flags on the contract - is this something you experienced? We love the unit and are pleased with the pricing we got, but we are growing concerned. Obviously, the building is selling and I haven't really heard anything negative in regards to once people move in - any thoughts?

LIC we had to amend the contract a few times actually but my lawyer was efficient and quick and didn't really involve me in the process until SHE was satisfied with the amendments she had initially made with the sponsor's attorney. Once I read what they deemed their final version I found one more thing that had to be amended and sent it back and it was amended with no issues.

I've talked with all the doormen by the way and have talked with a few residents during one of my many visits and everyone who lives there seems to really like the place. Hopefully I should be closing in the next 10 days or so...

Hope that helps...

Azalin - yes, very helpful, thank you! Congrats on your close, hope we'll be able to do the same in the coming months!!

We are also in contract with a unit at HV! We havent received our contract yet, but I will keep this in mind once we do. We hope to move in by the end of July, so I want this to go as smooth as possible. Fingers crossed!

I financed for many purchasers at OHP and HV. Generally, I. Think most unit owners are happy with their purchase. I certainly haven't met with anyone that couldn't come to an agreement based on contract language. Prices and numbers, yes but not language on the contract. Usually both attorneys are able to work it out. sunny.hong@bankofamerica.com

shong,
Do you do financing for Murano?
Please email me at LICCarol10009@gmail.com.

Thanks.

@ mwade - I was planning to make an offer on an apartment at Hunters View, but after reading this thread it's sort of scaring me away. I'd like to at least do my proper due diligence before proceeding. Lena says the building is 96% sold and the financials are good. She offered to send me the amendments. But nothing of that is worth spending time over if the apartment has structural problems. I wonder if you could refer me to the professional inspector that you mentioned helped you last year. Thanks a bunch for your honest contribution! I'm glad I took the time to read the whole thread!

Hi LikeLIC - I was considering making an offer as well. Did you ever get any further information about quality, etc? Thanks!

OMG...the south side facing units are HORRIBLE, and here's why!! Don't get fooled by the open house during weekends. Go to check out the units on a weekday morning when the trains come in and out, and engines are idling. The sound pollution is UNBEARABLE!! Simply google the issue, and you will find complaints raised by residents who bought into One Hunters Point (OHP) without realizing the extent of the noise!! So you got units facing the most polluted waterway in the US (Newton creek) and the very noisy trains on weekdays that will always want to make you look forward to quieter weekends!! Plus the views aren't guaranteed with the Hunters Point South Housing projects well under way. I think Murano's got the same issues.

Anyone searching for one hunters point disregard JB32. The trains are not "caps lock" horrible, if you turn on an standard AC you wouldn't notice it, if that can give you a gauge how loud it is. Visit the buildings during the day to get a good idea of what it is, its loudest in the AM / evening when the trains pull in and out. During the warmer days they are shut off during the day. Obviously its louder on lower floors. They are gone on holidays. Most people with a half a brain realize there is a train yard- with trains, going in and negotiate accordingly. The rail yard has been there for 100 years, its not going away. The reason the trains are there is because they don't fit in manhattan, its their parking lot. We live on south side and its not a bother at all. It is a white noise that you stop noticing after 5 minutes. We have people stay in the guest room and they come back, its a great place. The building is not that close to the newtown. The views will change, but its not going to be bad, hunters point south is further south on the point and will not completely obstruct the view. In fact because of the train yard you are not going to have a building go up in front of you. Disregard millionaire prima donna's who will only be happy overlooking the park and do the research for yourself. Nobody tries to hide the fact there is a train yard and the people who live there are fine with it.