Tag: Real estate

SEC Brings a Real Estate Valuation Action

Real estate is the standard for hard to value assets. But there are plenty of models to help reach a reasonable value. The Securities and Exchange Commission has apparently taken the position that it will not challenge absolute valuations, but will challenge flaws in the models that get to the value. A recent SEC case for improper valuation flaws was brought against a real estate company.

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The St. Joe Company is Florida’s second largest private landowner, holding over 500,000 acres of land in the state. The developments in question are known as Victoria Park, Southwood, and WaterColor.

The SEC order states that St. Joe deviated from GAAP and had a flaw in its impairment testing for its real estate developments. The model failed to include some necessary non-capitalized cash outflows. If St. Joe had used the correct model, those developments would have seen impairments of $55 million in Q1 2009 and $19 million in Q4 2009. The blame seems to be on the company for using two different models.

St. Joe also failed to take the pending sales price into consideration for one of the developments. The company had a development for sale at $15 million, but it fell through and went to the second place bidder at $11 million. The company failed to reflect that change in the likely realized price as an impairment. The company also told its auditors that the chance of sale was close to nil.

St. Joe’s problems came to light when David Einhorn of Greenlight Capital thought there was a problem with St. Joe’s accounting and began shorting the stock. His take: “Field of Schemes: If you Build It, They Won’t Come.” Mr. Einhorn then began releasing presentations that St. Joe was overvaluing its real estate developments.

Once the company realized there actually was a problem, it changed its models. But, it failed to go back and review prior periods. That would have resulted in a material restatement.

St. Joe also failed to disclose changes in business strategies for its Windmark II and Southwood real estate developments. The company was halting development and planned a future bulk sale of the sites. Unfortunately, St. Joe booked the value in its 2010 10-K as if it were still planning to develop both sites.

These were big issues. When finally recorded in Q4 2011 St. Joe had a 50% reduction in the value of its real estate and reduction of its total assets of more than 35%.

The order has some exact numbers which I assume are taken from St. Joe’s new valuations. The challenge by the SEC was that the company’s procedures were flawed. That lead to the improper valuations.

St. Joe is a public company so there are some differences with the private real estate fund model. However, it seems consistent with what the SEC is saying about private fund valuations.

The SEC was not fighting over small differences in valuations with St. Joe. There were big discrepancies in values. The SEC was not charging that the values were wrong, but that the way the company got to the values was wrong.

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Failing to Turn Real Estate Into a Security

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Fee simple ownership of the “bricks and mortar” of real estate is not a security. “The offer of real estate as such, without any collateral arrangements with the seller or others, does not involve the offer of a security.” As you move further away from that model, you move closer and closer to the ownership a security than the ownership of real estate. The line between the two is not a bright line.

A transaction that looks nothing like a sale of stock and involving such diverse items as citrus groves and vacation homes may qualify as a sale of a security under federal law.

There has been a recent ruling in case battling over that line. In Salameh v. Tarsadia Hotels, the purchasers of real estate are suing the developer of the Hard Rock Hotel in San Diego. The project was a condominium- hotel ownership structure to help provide capital.  The purchase/investment turned out to be a bad one, so the purchasers sued the developer.

Their claim was that a series of documents, including the Purchase Contract, the Unit Maintenance and Operations Agreement, and the Rental Management Agreement turned the ownership of the hotel/condo interest into a “security” and not the mere ownership of real estate. Since the securities were not registered, they could seek rescission. In this case, the ownership and control issues were not just split into separate documents, some of the documents were entered into at significantly different times.

The purchasers lost the case and appealed. They just lost the appeal.

The Ninth Circuit Court of Appeals affirmed the ruling from the district court.  The Court distinguished these facts from Hocking v. Dubois, 885 F.2d 1449 (9th Cir. 1989)  in which it had found that there was a general issue of material fact whether the sale of a condominium along with a rent-pooling arrangement constituted a security.

In Hocking, the the purchaser would not have made the real estate investment but for the availability of the rental pool arrangement. The sale of the real estate was coupled together with the management and income sharing that made the real estate investment look more like a security.

In contrast, the Salameh plaintiffs failed to allege facts showing that the real estate was coupled together with the management and income sharing as a package. The hotel developer pointed out in its pleading that the rental management agreements were executed eight to fifteen months later.

The ruling is another loss for the SEC in this edge between real estate and securities. The SEC had filed an amicus brief that relied on its 1973 Guidelines as to the Applicability of the Federal Securities Laws to Offers and Sales of Condominiums or Units in a Real Estate Development (Securities Act Release No. 33-5347 (Jan. 4, 1973) as the standard.

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When is Real Estate a Security?

Fee simple ownership of the “bricks and mortar” of real estate is not a securities transaction. “The offer of real estate as such, without any collateral arrangements with the seller or others, does not involve the offer of a security.” As you move further away from that model, you move closer and closer to the ownership a security than the ownership of real estate. The line between the two is not a bright line. One of the latest cases to address the difference is Salameh v. Tarsadia Hotels 2011 U.S. Dist. LEXIS 30375, on appeal to the Ninth Circuit.

One of the seminal cases is SEC v. W.J. Howey Co., 328 U.S. 293 (1946). That case involved an offering of units of a citrus grove development, coupled with a contract for cultivating, marketing, and remitting the net proceeds to the investor. They held that it was an offering of an “investment contract” within the meaning of that term as used in the provision of § 2(1) of the Securities Act of 1933 defining “security” as including any “investment contract,” and was therefore subject to the registration requirements of the Securities Act.

Even though decades have passed, the line is bit a clearer, but still muddy as the Salameh case illustrates. The developer of the Hard Rock Hotel in San Diego used a condominium- hotel ownership structure to help provide capital.  The purchase/investment turned out to be a bad one, so they sued the developer.

Their claim was that a series of documents, including the Purchase Contract, the Unit Maintenance and Operations Agreement, and the Rental Management Agreement turned the ownership into a “security” and not the mere ownership of real estate. Since the securities were not registered, they could seek rescission. In this case, the ownership and control issues were not just split into separate documents, some of the documents were entered into at significantly different times.

The issues are not that new. The Securities and Exchange Commission noted the problem as far back as 1973 when it issued Release No. 33-5347 which had guidelines on the applicability of federal securities laws to the sales of condominiums and units of real estate development.

The investors/purchaser lost the court case.  The court The case is now under appeal and there are numerous other issues involved in the case so we may not any new insight on when an investment in real estate becomes an investment in a security.

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Which Real Estate Fund Managers are Registered with the SEC?

After looking at whether a fund manager is an investment adviser and whether real estate is a security, I looked at the Private Equity Real Estate News list of the 30 biggest private equity real estate firms in the world (.pdf). (Disclosure: my company is on the list.)

How many of them are already registered with the SEC.

1 The Blackstone Group Yes
2 Morgan Stanley Real Estate Investing Yes
3 Tishman Speyer
4 Goldman Sachs Real Estate Principal Investment Area Yes
5 Colony Capital Yes
6 LaSalle Investment Management Yes
7 Beacon Capital Partners
8 The Carlyle Group Yes
9 MGPA
10 Lehman Brothers Real Estate Private Equity Yes
11 CB Richard Ellis Investors Yes
12 Westbrook Partners
13 Starwood Capital Group Yes
14 AREA Property Partners
15 Prudential Real Estate Investors Yes
16 Rockpoint Group
17 daVinci Advisors
18 Grove International Partners
19 Hines
20 Lubert-Adler Real Estate Yes
21 RREEF Alternative Investments Yes
22 Walton Street Capital Yes
23 Citi Property Investors Yes
24 Angelo, Gordon & Co Yes
25 Bank of America Merrill Lynch Global Principal Investments Yes
26 Shorenstein Properties
27 Lone Star Funds Yes (Hudson Advisers)
28 Heitman Yes
29 Aetos Capital Yes
30 Rockwood Capital

If you do the math, 19 of the top 30 are already registered with the SEC as Investment Advisers. I expect to see several more in the “yes” column before July 21, 2011, the registration deadline under Dodd-Frank.

The PERE 30 measures capital raised for direct real estate investment through commingled vehicles, together with co-investment capital, over the past five years.

Rosand Enterprises and Real Estate Fraud

I find looking at fraud cases instructive, seeing common themes, failures and techniques. Since my company is in real estate, real estate fraud catches my eye. Recently the SEC brought a case against Rosand Enterprises and one of its principals, Robert A. Anderson.

The Securities and Exchange Commission came in late. The Illinois Secretary of State had already filed an order against Rosand Enterprises, Rossetti and Anderson.

In the Illinois order, they alleged that the enterprise had solicited investors to loan them $2.735 million, with repayment at 15% per month for a six-month note or 20% for a twelve-month note.

The SEC found a broader network of $12 million solicited from 77 investors. (I wonder why the SEC did not include Mr. Rossetti their complaint.) The US Attorney also got involved and announce criminal charges.

Let’s look at some of the red flags.

Extremely high returns should be a big warning. Rosand was offering returns of 15% or 20% per month on loan payments. If the business is that profitable, why bother getting outside collateral. They are doubling their money every six months.

The money was guaranteed. Risk equates to reward. If money is in a safe investment, you should only get a small return. If there is a high rate of return then the investment is going to be risky. Any promised returns above 10% per year should immediately be suspect.

They were offering the notes to non-accredited investors. If you make less than $200,000 per year or have a net worth of less than $1 million you are non an accredited investor. That means you are not generally able to purchase unregistered securities like the notes offered by Rosand.

One aspect of real estate is that ownership is part of the public record. Anyone can walk into the registry of deeds and see who owns a piece of property and who they bought it from. In most places, you can also see the price paid.  If Rosand was buying and rehabilitating houses, a potential investor could easily look up the information in the land records.

The Cook County Registry of Deeds is online. I ran a quick grantor/grantee search on “rosand.” No surprise, Rosand Enterprises has not bought or sold any real estate in the past 15 years.

Like most Ponzi schemes, eventually you will run out ways to get new money in the door to cover the money going out. Rosand stopped making payment in June 2008. Two years later, the State of Illinois and the SEC stepped in to protect investors.

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New Codes of Conduct for Real Estate Companies

It’s always useful to look at what your competition is doing. The same is true in drafting your code of conduct (or code of ethics or whatever name you chose). It is useful to look at you what your competitors’ codes of conduct look like.

Since Sarbanes-Oxley requires a public company to have a code of conduct, its fairly easy to dig around the investor relations portion of their website or SEC filings to get your hands on examples.

Since my company is a real estate company, I put together a database of Codes of Conduct for Real Estate Companies.

My original goal was to find codes for other real estate private equity companies. I struck out.

So I expanded to public REITs and real estate investment advisers. All of the companies in the database are public.

So far I have not found a private real estate company that has published its Code of Conduct. This is what I expected and not a criticism. In fairness, I haven’t publicly published my Code of Conduct.

With compliance, it’s better to think of competitors as peers instead of the competition. You might get some market gain with a competitor lost to a compliance or ethical failure. You’re more likely to get more government oversight and regulation, less of investor confidence and many more headaches.

Database of Codes of Conduct for Real Estate Companies

Image of Columbia Center is by simonsonjh from Wikimedia Commons

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