Residential Realities December 2011

December 8, 2011: Easing the Pain--AG Improves Digital Disclosure
At Odds with an Observation…
At a recent meeting of co-op and condo lawyers, a participant commented that he doubted that most lawyers and their clients actually read the offering plan presented by the sponsor of a particular development. I have no empirical evidence to the contrary, but anecdotally, I know that’s it’s far from the truth. In fact, most attorneys do review the plans, which is no easy task, based upon the length and complexity of the sponsor disclosure document. I am also encouraging purchasers to read the document as well.
The Way it Was…
It was always a challenge to determine how many amendments had actually been filed to a particular offering plan. Most brokers will tell you that the best way to identify the total number of amendments is to contact the managing agent for the particular co-op or condo. Managing agents, however, usually don’t know how many amendments have been filed or often don’t have a complete set of offering documents. The Attorney General's office in New York City is the repository for all offering documentation and the only real way to determine the last amendment filed to a plan. A telephone call to that office was the best way to obtain that information. But there was really no way to confirm the accuracy of what that disembodied voice on the other side of the call was telling you.
Entering the 21st Century
Finally, there is progress in the process. The Real Estate Finance Bureau of the AG’s office has now made their sponsor database available, so that anyone can check basic information about sponsors and their developments, including the number of amendments that have been filed. I found the website to be a great improvement from the analog process of trying to get someone on the phone to confirm what I needed to know. The information is limited and the system is somewhat primitive in terms of what is currently otherwise available from other governmental websites (like New York City’s Department of Finance website), but it is clearly a good start and a step in the right direction. The AG will also start taking filings electronically, and hopefully, new plans and the amendments that follow will be available online sometime in the foreseeable future. Here are a few suggestions for improving the process of collecting offering plan data to complete due diligence in connection with a purchase:
--To begin with, offering plans should be digitized by the AG’s office. That being said, and considering the limited staff and budget constraints, an alternative might be to make the documentation available to those companies which are maintaining offering plan libraries online. Currently, a Freedom of Information Law request is necessary to obtain a copy of a plan, if the AG has it, and it could take weeks before access is actually granted. This antiquated process makes no sense in the world we in live today and needs to be updated. It is in the best interests of the public to have easy access to offering documentation. The AG could go a long way to improving the dissemination of the information by sharing this data.
--Developers should be required to disclose plans and amendments online, while units are being offered for sale and to maintain that information online as a part of their disclosure obligations.
--Older plans should not be destroyed by the AG. Presently, plans and amendments more than 12 years old are thrown out and are no longer available. Again, the older plans should be donated to those services which are keeping a digital record of all offerings. It’s a head scratcher as to why the historical record of an offering eventually winds up in the round file as this information is sometimes critical to ownership rights and unique features of particular offerings.
Looking Ahead…
It’s taken many years for the AG to make basic sponsor information available online and it is a significant improvement. The next step is to make offering documentation readily available through the AG's website portal. It’s a monumental task, but it’s time to get started…