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In two recent cases, sponsors in New York State, the state that has the most complex regulatory scheme for the sale of condominiums in the United States, have been found to have failed to comply with the less rigorous disclosure mandated by the Interstate Land Sales Act (“ILSA”). In both cases ' Bacolitsas v. 86th & 3rd Owner, LLC, No. 09 (iv.7158(PKC)(S.D.N.Y. Sept. 21, 2010), and Nu-Chan, LLC v. 20 Pine Street LLC, No. 09 (iv.00477(PAC)(S.D.N.Y. Sept. 30, 2010) ' the sponsors were required to refund deposits regardless of the amount of disclosure that had been given to the purchasers.
Bacolitsas
In Bacolitsas, the sponsor filed a Statement of Record and an accompanying Property Report with the U.S. Department of Housing and Urban Development (HUD), as required by ILSA, which the purchasers received with the Offering Plan. When the purchasers failed to make the third payment required by the sale contract and filed an application with the New York Attorney General for the return of their down payment, the Attorney General investigated and found in favor of the sponsor. Nevertheless, the U.S. District Court ruled that the purchasers still had the right to rescind the agreement and have their deposit refunded as a result of the sponsor's failure to comply with section 1703(d)(1) of ILSA, which permits a purchaser to revoke “any contract ' for the sale ' of a lot ' which does not provide – (1) a description of the lot which makes such lot clearly identifiable and which is in a form acceptable for recording by the appropriate public official responsible for maintaining land records in the jurisdiction for which the lot is located ' .” The court found that because the Agreement between the sponsor and the purchaser was not acknowledged before a notary public or other specified officer and contained a provision precluding the recording of the Agreement or a memorandum thereof, the purchasers had the right to cancel the agreement and obtain a refund of their deposit.
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