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Second Circuit Issues ILSA Ruling in Bodansky
On March 15, 2011, the United States Court of Appeals for the Second Circuit issued its first decision interpreting the Interstate Land Sales Full Disclosure Act (“ILSA”), 15 U.S.C. ” 1701-20, in Bodansky v. Fifth on the Park Condo, LLC and Romero v. Borden East River Realty LLC. The two cases involved developers selling pre-construction units in condominiums containing more than 99 units relying on a combination of available exemptions in a practice known as “stacking.”
Background
Neither developer had registered its project with the Office of Interstate Land Sales Registration (“OILSR”) or issued a Property Report to the purchasers, although both had filed Offering Plans with the New York Attorney General. Both sponsors offered units in condominiums that were each scheduled to contain more than 100 units, although less than 100 units had been sold. When the sponsors were sued by purchasers for violating ILSA, both district courts held that the sponsors were exempt from ILSA. The district court in Bodansky held that because the sponsor had obtained a temporary certificate of occupancy (“TCO”) prior to selling more than 100 units in the Fifth on the Park Condominium, the sale of the first 99 units was exempt under the 100-Lot Exemption (15 U.S.C. ' 1702(b)(1)) and the balance of the units would be exempt under the Improved Lot Exemption (15 U.S.C. ' 1702(a)(2)). Similarly, the district court in Borden East, relying on Bodansky, held in favor of the developer of the One Hunters Point Condominium, which had also sold less than 100 units in One Hunters Point and Hunters View.
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