The Big Short: Required Reading (and watching) for Dirt Lawyers

Standard

thebigshort

Super Bowl 50 was the big entertainment news of the weekend, but coming in at a personal close second were the book and movie The Big Short. I rushed to finish the former before dragging my husband to a Saturday matinee of the latter. Then, a friend pointed me to an NPR special “The Giant Pool of Money”, which provided a fascinating diversion for my Saturday afternoon walk.  (I confess to being easily entertained by all matters involving real estate.)

I encourage everyone involved with “dirt” to read the book, watch the movie and listen to the podcast. All relate to the 2008 financial crisis. At the center of the book (and movie) were several eccentric investors/money managers, who predicted the fall and brilliantly crafted a method to cash in on it. At the center of the podcast was the “giant pool of money”, the trillions of dollars in the economy that constantly need a place to be invested.

Locally, we heard the stories about real estate investors who lost properties and funds in the crash. In our office, we compared the crash to a game of musical chairs. The investors who sat in the chairs when the music stopped (the ones who held titles to the properties) were the ones who lost.

All areas of South Carolina were affected, but our coastal areas were hardest hit. Property values were phenomenal!  A contract on a yet-to-be-constructed residence might change hands several times at increasing prices before the final purchase. And loans were easy to procure at all income levels. No one thought property values would ever soften, and it didn’t matter if adjustable rate loans would reset in two years at staggeringly high fixed interest rates because refinances were readily available. Properties and mortgages churned like butter. There was apparently no end in sight.

The book’s author, Michael Lewis, who also wrote Moneyball and The Blind Side (back to football, which really is the center of the universe), said in explaining the mindset of the people who would borrow again and again, “How do you make poor people feel wealthy when wages are stagnate? You give them cheap loans”.

One of the money managers in The Big Short had his eyes opened by a story from his own household. His babysitter revealed she and her sister owned five townhouses in Queens. When he questioned asked how that possibly could have happened, she responded that after they bought the first townhouse, the value increased, and lenders suggested they refinance and take out $250,000, which they used to buy another townhouse. And so on….

The “giant pool of money” that at one time had been invested safely in boring assets like Treasury bonds, needed a place to land with higher interest rates. With mortgage rates being at 3.5% and higher, no better place could be found.

How did the money managers cash in?  They looked at pools of mortgages that were being sold on the secondary market, saw that the interest rates would collectively begin to reset in early 2007, and bet against the housing market.

They created a “credit default swap” market that bet against collateralized debt obligations. Huh?

One of the points of the book is that the financial markets created fancy terms that average individuals could not possibly understand. In this particular case, it turned out that that the big Wall Street firms, the people who ran them as well as their regulators, did not understand what was happening either.

“Credit default swap” is a confusing term because it is not a swap at all. It is an insurance policy, typically on a corporate bond, with semiannual payments and a fixed term. The money managers who predicted the subprime lending crisis bought credit default swaps that paid off, like insurance policies, when the market crashed.  These eccentric money men were able to predict that there would be a crash of the subprime mortgage market even if housing prices only stalled because borrowers would not be able to refinance or make payments.  When prices dropped, the money men were able to cash in at astonishing levels.

The most horrifying point of the book was that the government’s response to the crisis, the so-called bailout, will not prevent the crisis from happening again. We can only hope that we are all better educated the next time around. As I opened Outlook this morning, though, the first article that caught my eye was from Housingwire entitled “Risky home lending really on the comeback?”  Let’s collectively hope not!

County May Owe Duty to Lot Owners in Failed Subdivision

Standard

Infrastructure regulations were not followed

scales - blue backgroundOn January 6, the S.C. Court of Appeals reversed the Georgetown County Circuit Court’s directed verdict and remanded a case involving failed West Stewart Subdivision.* The developer, Harmony Holdings, LLC, went belly up in 2007, leaving the lot owners without roads and utilities after the County failed to follow its own regulations that provided a safety net for such catastrophes.

The plaintiff owned two lots in the subdivision, and filed a negligence action, arguing that Georgetown County had a “tort-like” duty to lot owners under the plain language of its development regulations. The County denied that it owed a duty to lot owners.

The County attorney explained the administrative issues at trial. He testified that in South Carolina, a developer is generally not allowed to sell lots that do not have infrastructure (roads, water and sewer). County regulations, however, allow the County to accept cash, bonds, financial guarantees or letters of credit to ensure money is available to complete infrastructure in case a developer fails.

Under the regulations in question, the County had discretion to accept a letter of credit equal to 125% of the cost estimate to complete the infrastructure. In this case, the developer posted a letter of credit on May 23, 2006 in the amount of $1,301,705 based on a cost estimate of $1,040,000.

Also under the regulations, the County had the power to approve reductions in the letter of credit upon receipt of an engineer’s certification that a certain amount of the work had been completed and sufficient funds were available for the remaining work. Other technical procedures were also required. The County allowed for a reduction in the letter of credit on July 20, 2006, October 9, 2006 and November 8, 2006, reducing the letter of credit to $553,370. In December of 2006, the County was advised that the estimated cost to complete the infrastructure was $1,153,205, which was higher than the original estimate. Despite this information, the letter of credit was reduced again on March 9, 2007 to $156,704.

The letter of credit expired in May of 2007, and the developer gave the county a check for $140,000. In August of 2007, the developer informed the County that it no longer had the financial means to complete the construction. Then the developer declared bankruptcy.

Repko described his lot as “woods” accessible by a path but inaccessible by a road. He testified that he believes his property is valued at “zero”. He said he pays property taxes on his lot, but the County will not allow him to build because of the absence of basic utilities.

The trial court directed a verdict in favor of the County on the grounds that the regulations do not create a private duty to lot owners. (Other issues were argued that will not be discussed here.) The Court of Appeals agreed with the lot owner that the County owed a special duty to him with respect to the County’s management of the financial guaranty that allowed the developer to sell lots.

inigo montoya memeThe County had relied on a 1993 Hilton Head case.** In that case, the preamble to the development ordinances stated, “The town council finds that the health, safety and welfare of the public is in actual danger….if development is allowed to continue without limitation.” When the development failed, a lot owner sued the Town, claiming it had negligently administered its ordinances. The Supreme Court held that the ordinances did not create a special duty to lot owners because their essential purpose, according to the preamble, was to protect the public from overdevelopment.

The Court of Appeals in the current case held that, unlike the Hilton Head ordinances, the Georgetown County regulations contained no express language declaring their purpose, but reviewing them as a whole, the purpose is to protect lot owners in the event the developer does not complete infrastructure.

I expect we have not seen the end of this case!

* Repko v. County of Georgetown, Opinion 5374, January 6, 2016.

** Brady Development Co. v. Town of Hilton Head Island, 312 S.C. 73, 439 S.E.2d 266 (1993).

Federal Housing Finance Agency Announces Conforming Loan Limits for 2016

Standard

The maximum remains the same in most markets

FHFA LogoSpeculation earlier this year was that the Federal Housing Finance Agency (FHFA) would increase the limits for conforming loans in 2016 above the current amount of $417,000. But FHFA recently announced that the current limit would remain in place for most of the country.

The limit is increased above $417,000 in only 39 counties in the United States. The so called “high cost” counties are located in the metro areas surrounding Denver, Boston, Nashville and Seattle as well as four counties in California.

By way of background, a conforming loan is a mortgage loan that meets the guidelines established by government-sponsored enterprises Fannie Mae and Freddie Mac. Conforming loans require uniform mortgage documentation and national standards dealing with loan-to-value ratios, debt-to-income ratios, credit scores and credit history. Conforming loans are repackaged to be sold on the secondary market. Because Fannie and Freddie do not purchase non-conforming loans, there is a much smaller secondary market for those loans.

The FHFA publishes conforming loan limits each year. Loans above the conforming limit are considered jumbo loans, which cannot be purchased by Fannie and Freddie and which typically have higher interest rates.

The Housing and Economic Recovery Act of 2008 established a baseline loan limit of $417,000 and required that after a period of housing price declines, the baseline loan limit cannot be increased until housing prices return to pre-decline levels.

Trulia’s Blog Paints a Rosy Picture of Housing in SC for 2016

Standard

Charleston is identified as the second hottest market in the country! Columbia is seventh!

_SC FlagIt’s budget time for me and for many real estate professionals. We are reading everything we can uncover on economic forecasts, and for me, the focus is real estate in South Carolina. Today, an interesting blog entitled “Housing in 2016—hesitant households, costly coasts, and the bargain belt” popped up in my newsfeed in Facebook. The blog, dated December 3, was written by Ralph McLaughlin of Trulia, the online residential real estate site for buyers, sellers, renters and real estate professionals.

As a part of its annual forecast for housing, Trulia commissioned Harris Poll to conduct a survey in November of about 2,000 Americans concerning their hopes and fears on housing. The survey indicated that the American Dream of home ownership is alive and well and continues its resurgence since the economic downturn.  The blog states that the percentage of Americans who dream of owning a home is up 1 point to 75% and up 2 points among millennials to 80%. But 22% of Americans believe it will be harder to get a mortgage in 2016.

Hesitant households in the title of the article is a reference to the obstacles consumers perceive to buying a home:  down payments, credit history, qualifying for a mortgage and increasing home prices are the top four.

Costly coasts are the expensive metro markets in the West and Northeast. Trulia is expecting those markets to cool because affordability has decreased, homes are staying on the market longer, and saving for a down payment is taking decades. In addition, consumers in those markets are pessimistic about housing.

The good news for us in The Palmetto State is that we are located in the so-called bargain belt, the highly affordable markets in the Midwest and South, where the survey shows consumers are upbeat about housing and where Trulia is expecting growth housing.

Trulia also identifies ten markets with the strongest potential for growth in 2016, and two of them are ours:

  1. Grand Rapids, Wyoming
  2. Charleston, South Carolina
  3. Austin, Texas
  4. Baton Rouge, Louisiana
  5. San Antonio, Texas
  6. Colorado Springs, Colorado
  7. Columbia, South Carolina
  8. Riverside-San Bernardino, California
  9. Las Vegas, Nevada
  10. Tacoma, Washington

Everyone paying attention is aware that the Federal Reserve has expressed a commitment to raising interest rates either by the end of the year or early in 2016, and we have seen the stock market respond each time Janet Yellen speaks on this topic. But if this projection and others that indicate the market in South Carolina will be strong in 2016 are correct, we should expect a strong 2016. Perhaps by the end of the first quarter, we will begin to feel the worst of the TRID transition is behind us, and we will be ready to embrace the growth we are anticipating.  Let’s all look forward to the ride!