Imagine a New York City co-op or condo building that certain lenders won’t touch: It could be a nightmare situation for a buyer, seller, and the building in general.

That scenario is the new reality for nearly 40 apartment buildings in NYC that appear on a list putting them off limits for Fannie Mae lenders—and there is the potential for that number to grow exponentially in the next couple of years, according to at least one real estate professional. While some real estate lawyers and mortgage brokers that Brick Underground spoke to have not yet encountered a buyer unable to get financing as a result of this banned building list—they concede it could be a significant problem in the near future.

Orest Tomaselli is the president of the project approval division at CondoTek, which provides data on condos for lenders, and the CEO and president of Strategic Inspections, which conducts co-op and condo reserve studies. He sounded the alarm about the Fannie Mae unavailable condo and co-op list in a recent post on his firm’s website.

More than 1,400 U.S. condo and co-op buildings have been added to this list since 2022 and thousands more are likely to be added in 2023, he says, explaining that the unavailable list prevents lenders from closing and selling loans in these designated properties to Fannie Mae. There are 39 condo and co-op NYC buildings on this list, he tells Brick. (CondoTek works with buildings to help get them off the unavailable for lending list.)

What is the Fannie Mae unavailable condo and co-op list?

The list is part of a response to the Surfside, Florida condo tower collapse in June 2021. Following that tragedy, which occurred after building managers were warned about major structural damage, Fannie Mae, one of the government-backed entities that buys loans from banks, issued new guidance to lenders essentially shutting off loans for buyers in buildings with low reserve funds for structural repairs, among other risky scenarios.

Freddie Mac, the other quasi-government agency that buys back conforming loans, also issued similar guidance. Other lenders tend to follow Fannie and Freddie’s lead and are likely to align their rules—and Tomaselli sees this alignment extending to jumbo lenders and underlying mortgage financing as well.

Being on the list means buyers could run into trouble if they’re seeking conforming loans (mortgages that meet Fannie and Freddie guidelines). A higher conforming loan limit for 2023 gives New Yorkers bigger loans that are cheaper and easier to qualify for and depending on how much they are seeking, an alternative to jumbo financing.

“If Fannie Mae is unwilling to purchase loans in ‘unavailable’ condo and co-op properties, few, if any, lenders will extend mortgage financing borrowers in these properties,” Tomaselli writes.

The original goal was to discourage the practice of deferred maintenance in buildings with aging infrastructure—meaning putting off needed repairs because of budget shortfalls. To put some teeth into it, Fannie Mae said it wouldn’t buy back mortgages from condo or co-op developments that used an assessment to pay for repairs involving structural integrity until the repairs have been made. It created the new status of “unavailable” for buildings that don’t meet eligibility, and a new requirement: Condo buildings need to accumulate reserve funds by setting aside 10 percent of their annual operating budget every year to put toward their reserve fund, a departure from past practices that allowed buildings to obtain a reserve study instead.

Ryan Greer, senior vice president at National Cooperative Bank (a Brick sponsor), points out that while Fannie Mae’s requirement to collect 10 percent of the operating budget for reserves only applies to condos, not co-ops, NCB does “include a reserve ratio in our financial analysis for co-ops as a measure of overall financial stability.”

Buildings are increasingly using assessments to fund capital improvements or shore up their reserve funds for capital improvements, often in excess of $1 million, he says. “Cooperatives typically offer a discount for payment upfront and will allow shareholders to make payments in installments over two to five years,” he says.

But even though a good majority of NYC buildings do rely on assessments to pay for upgrades, the list of banned buildings has only grown slowly—at least until now.

How does a co-op or condo land on the list?

Tomaselli explains that there are several triggers that can land a building on the list, including when a questionnaire is sent to building management as part of the mortgage application process.

If the building is non-compliant with Fannie Mae guidelines, some lenders may just reject the loan. Others may send the documentation to Fannie Mae and request an override—and that review may be what puts the building on the no-lend list.

Why are some buildings considered unavailable for lending?

There are many reasons why a building may end up on the list, Tomaselli says, but these four reasons are the main ones:

– It doesn’t have a 10 percent reserve line item in its operating budget. (Freddie Mac does accept a reserve study in lieu of a reserve fund requirement.)

– It is not compliant with Fannie Mae’s insurance requirements.

-It has violations related to structural or mechanical repairs that need to be completed.

-Investor-owned units exceed Fannie Mae’s maximum thresholds. (More than 20 percent of units are owned by one investor or more than 50 percent of units are owned by investors—which can be a problem in rental-to-co-op or rental-to-condo conversions.)

Local Law 97, which requires buildings over 25,000 square feet to reduce harmful gas emissions by 2024, will also likely land “thousands” of buildings on the list in the future, Tomaselli says.

The city estimates about 20 to 25 percent of buildings will exceed their emissions limits in 2024 if no action is taken. Fines will be issued in 2025 if a building exceeds the limits or fails to report its energy use.

“Local Law 97 is going to have a gigantic impact,” he says. If a building receives a Local Law 97 fine for not repairing or replacing its outdated heating system, for example, or the building does not have enough capital in its reserve account to replace those components, then the building would be ineligible for Fannie Mae mortgage financing and is likely to end up on the unavailable list.

How do you find out if your building is on the list?

If you’re a seller, buyer, or on a building board—wouldn’t you want to know if your building is on the list? Good luck with that. The list is not public; it is only available for view by Fannie Mae lender partners. (Tomaselli has seen the list.)

“Unless a lender notifies the property manager or [a board] then there is no official way you find out if you’re on the list,” Tomaselli says. “The lack of transparency is shocking.”

Since the goal of changing Fannie Mae’s guidelines in the wake of the Surfside tragedy was to “make sure buildings pay attention to finance and structural problems, you would think they would want to make sure boards were aware,” Tomaselli says. But the only way a building finds out if it is on the unavailable list is when a buyer applies for mortgage and is informed the building is on the list. (Brick reached out to Fannie Mae for comment but did not get a response.)

But the sky is not falling yet

Mortgage broker Kevin Leibowitz, founder of Grayton Mortgage, says he hasn’t heard of a NYC deal blowing up because of Fannie Mae’s unavailable list, but sees the potential for problems in buildings where buyers are likely to need a conforming loan.

Still he cautions against overreacting: “Just because a building is on this list doesn’t mean the value of the building is going to become worthless,” he says. That’s especially true in high-end buildings where buyers have lots of options for loans.

These guidelines may create more headaches for jumbo loan borrowers, he predicts. They are already tougher to qualify for—you need a higher credit score and more cash reserves, for example. In other words, lenders are not giving these loans away easily. “It may be worse for the jumbo borrower because there are no more stupid loans anymore,” Leibowitz says.

How to avoid getting your deal derailed by the unavailable list

When you’re buying in NYC, you need an attorney who will dig into the financial health of a building, explains Shaun Pappas, a partner at Starr Associates. That includes reviewing board meeting minutes to see what’s been going on. Be patient and allow your attorney to investigate, he suggests.

A building that has been pre-approved by a lender or where a lender has lent in the past means you’re less likely to run into problems, he adds.

Another strategy in the current market: Requests for financing and funding contingencies to protect the buyer are also making a comeback, he says. These days it’s harder for a seller to push back on those.

Some buildings have not yet put a strategy in place for dealing with Local Law 97, he says, and that has repercussions for lending.

“Everyone in NYC is so busy, and we don’t often look down the road as we should,” he says, adding that “a bank is not going to take a step if a building doesn’t have a plan in place for LL97,” he says. But the outcome may not be that dramatic: The closer we get to these deadlines, two things could happen, he notes: “If buildings aren’t ready, the city will push the dates back. Otherwise banks will have trouble finding buildings they can lend in.”

And that latter scenario will likely prompt banks to come up with workarounds.

As attorney Bettina Miraglia, a partner at DL Partners explains, “We all need residential mortgages. My guess is the banks will figure out solutions,” she says, pointing out how Freddie Mac’s guidelines offered some flexibility to borrowers. That kind of variation is necessary in lending and it’s part of the bigger picture. “We need the regional banks, the First Republics,” she adds.

Negotiating with a New York City condo developer as opposed to an individual seller is a very different apartment buying experience. Don’t assume you’ll get money off the purchase price—condo developers typically avoid outright price reductions on their apartments because their financing is structured around achieving a specific dollar amount for each apartment. Price cuts could also hurt future sales, so in order to keep them high, sponsors tend not to offer discounts.

“In new development typically transfer and mansion taxes are paid for by the buyers—also the sponsor attorney fees—so rather than just trying to get the price down I would look to those types of payments to negotiate,” says attorney Shaun Pappas, a partner at Starr Associates.

The sponsors are much more open to those conversations. However, every deal is unique and your ability to negotiate will depend on market conditions, the developer’s construction timetable, and the number of units that have already been sold. The more educated you are on new development sales, the better your chances of getting a deal you’re happy with.

Create the right team for your deal

Successful negotiations often come down to mutually respectful relationships, so it’s important to have a broker with a good attitude and reputation. Your broker needs to be someone you trust and someone who will support you as you work to close the deal on the right apartment. Find a broker who understands the nuance of buying new development.

One negotiating tip is to have a price range in mind—rather than a specific number—that you would be prepared to pay for the apartment. Focus less on the purchase price and more on the net payment you’ll be making. You can think of the deal as a package that takes into consideration other aspects of the deal like the deposit, the contingency, or the closing details. 

“When you know those little nuances you have a better chance of having an honest conversation and getting some additional discounts,” Pappas says. As you move forward with the deal you’ll need to be flexible and your broker and attorney will be the people to guide you.

Timing your purchase can give you leverage

You may have more leverage at the beginning or end of a developer’s project. This is because during the pre-construction phase, the sponsor will want to get 15 percent of the apartments under contract. This is typically the magic number at which the offering plan is declared effective by the attorney general and closings can legally begin.

Some developers will wait a little longer, until 30 or 40 percent of the condos are under contract before getting the attorney general’s official sign-off on the building. This is usually down to lender requirements. Once the building is declared effective, sales can go ahead.

If you’re buying at this early stage, financing is typically offered through the sponsor’s preferred lender until the building meets Fannie Mae specifications.

You might also have more room to negotiate at the very end of the project, when a sponsor may be eager to close down the sales office and move on to their next project.

Ask for concessions instead of a price cut

If price cuts are not on the table, you may have more success with concessions. These are buyer incentives a developer might offer to encourage you to close on a brand new condo. If a developer won’t lower prices, they may offer inducements instead. In the past developers have offered to pay your common charges for a limited time, or allowed rent-to-own options

With mortgage rates higher than they’ve been in years, you may find a developer is willing to buy down your mortgage interest rate for a limited number of years. This mirrors the concept of buying mortgage points to lower your payments and is a way for sponsors to induce you to buy in spite of higher rates. “It helps to alleviate some of the short-term pain of how high rates are—and it’s a very creative solution,” Pappas says.

These types of concessions can save you thousands of dollars so it’s always worth exploring what a developer is willing to offer.

When you buy in a new development you often have to pay some of the closing costs that, if you were buying from an individual owner, would be covered by the seller. This includes the sponsor’s attorney fees as well as transfer taxes. Part of your negotiations might be to see if you can get the sponsor to pay the transfer taxes, mansion tax, mortgage recording tax, or offer a more tangible perk like free storage or a parking space.

Negotiating the deposit

You may also be able to negotiate on the deposit for the unit. The amount of leverage you have depends on whether you are an early buyer and what kind of market it is.

Most sponsors ask for 10 or 15 percent down when you sign the contract. If you are being asked for between 10 and 20 percent during the pre-construction phase, when the sponsor is eager to hit the mark of having 15 percent under contract—you may be able to negotiate it down or have them agree to spread out the payments.

Sometimes a sponsor has a two-step deposit where you initially put 10 percent down and then put another 5 or 10 percent down when the building is declared effective. “Those are all numbers you can talk about,” Pappas says.

Negotiating items in the offering plan

The offering plan explains all the features in the building and apartment. It has details of how sales are conducted and how the condo will operate, including what you’ll pay in common charges. The monthly common charges are based on the percentage of the building that you’ll own—or your common interest—and although this isn’t negotiable, you may be able to come to an agreement with the sponsor about other elements.

For example, you might be able to negotiate for upgraded flooring, fixtures and appliances. The offering plan typically states appliances will be a certain brand or equivalent so you can make sure any equivalent brands meet your standards.

You may also be able to negotiate certain building amenities, like access to storage lockers, parking spaces or roof rights.

Asking for closing credits

A closing credit is money paid to the seller at the closing table—a topsy turvy way for the developer to record a higher sales price but also give the buyer a discount. You’ll encounter closing credits when the market is slow but it’s worth talking about this with your broker and attorney.

Asking for a credit at closing can be savvier than asking for the same amount to come off the asking price at the start of your negotiations. If you’re using financing, a drop in the sales price will make a nominal difference to your mortgage payments but the same amount in closing credits can be more meaningful. Another tip is to multiply your savings by using a closing credit to buy down your rate. 

Unless you’ve sold an apartment or townhouse in New York City in the recent past, you may be shocked by how big a bite closing costs can take out of your profit.

Most experts advise allocating a whopping 8 to 10 percent of the purchase price to cover these fees and taxes—double what buyers can expect to pay on their end. That means you’d have to fork over $80,000 to $100,000 in closing costs on a $1 million sale—and this amount is on top of paying off any outstanding mortgage balance. Ouch. 

Plus to get deals done in a soft market, sellers face covering some of the buyer’s closing costs at the negotiating table. Double ouch.

Besides avoiding surprises at the closing table, knowing what your net profit will be (minus closing costs) will help you set a realistic budget before you begin your next home search—and before you fall for something that might be out of your price range.

As with all real estate transactions, the actual costs will vary depending on the type and location of the property and you’ll want to explore your options with an experienced broker and attorney to get the most out of your sale.

Broker fees

Commissions represent the biggest slice of the closing-cost pie. In NYC, sellers are expected to cover the broker fee, which is typically 5 to 6 percent of the purchase price and split equally between the seller’s and buyer’s agents—or all to the seller’s agent if the buyer is unrepresented (aka a direct buyer). That’s $60,000 on a $1 million deal. 

There’s no law that dictates what brokers charge, however; that 5 to 6 percent is based on an industry standard and is ostensibly negotiable.

“My recommendation for a seller who wants to negotiate a broker commission is to speak with/interview a few different brokers at different companies and ask each what the best they can do on their commission is,” says attorney Adam Stone, partner and founder of The Stone Law Firm. “But I’m generally not a proponent of negotiating down a broker commission because if I was a seller I’d want the broker to be incentivized as much as possible to focus attention and assets on my deal to achieve the best result.”

Daniel Gershburg, an attorney with Konner Gershburg Melnick Darouvar, agrees. “While there has been some market pressure to lower commission percentages, what I’ve found is that the top tier brokers continue to charge 5 or 6 percent and they bring tremendous value to their clients. They’re the gatekeepers and the reason as to whether your sale has a good chance to go through quickly, so I would be very hesitant to negotiate that down to save costs.”

Transfer taxes

This being NYC, sellers of co-ops, condos, and townhouses pay a combined state and city transfer tax of 1.825 percent if the sale price is over $500,000 or 1.4 percent for deals $500,000 or less. That works out to $18,250 on a $1 million sale, and $7,000 on a $500,000 sale. The New York State transfer tax increases to by 0.25 percent for transactions greater than $3 million (meaning you’d pay $83,300 on a $4 million deal).

Note that buyers are responsible for paying transfer taxes when buying a co-op or brand-new condo from the sponsor, though this often becomes part of the negotiation process.

Flip taxes

Some co-op and condo buildings have flip taxes (also known as transfer fees) ranging anywhere from 1 to 2 percent of the purchase price and up to 3 to 5 percent. Some buildings charge 10 percent of the seller’s profit. Flip taxes are not really taxes, but a fee paid to support building reserves and capital improvements.

In some buildings, the buyer pays, and in others the seller. In slower markets, a seller may be more willing to pay the flip tax in order to close the deal, even if it’s technically the buyer’s responsibility. “A knowledgeable buyer is going to try to get a transfer fee covered,” Stone says.

Attorney fees

Most attorneys in NYC charge a flat fee (rather than an hourly rate) that’s due at the closing.

“This really depends on the location and type of property, but I would always counsel that you usually get what you pay for,” Stone says.

Expect to pay at least $3,000 for a basic transaction and more like $5,000 on up for “luxury” sales (over $5 million) and complex deals such as when the sale involves an estate or property with liens—anything that’s going to require extra time and expertise. 

Building fees

These are easy to overlook, but most condo and co-op buildings charge move-out fees ranging from a few hundred to a couple of thousand dollars. Plus you might also have to pay a $1,500(ish) fee for the managing agent and co-op attorney.

Concessions

According to attorney Shaun Pappas, a partner at Starr Associates, concessions have begun to creep back into the market with the high-interest rate environment. “Sponsors are more aggressive with the negotiations and are offering certain incentives to purchasers, such as free common charges for a year, transfer taxes paid on behalf of purchasers, and interest-rate buy-downs for a period of time.”

What’s more, sponsors of new condos may be willing to pay buyers a closing credit rather than reduce the asking price of their units. Gershburg says he’s aware of a new development where the developer was offering a $500,000 concession on a cash purchase of a $4 million apartment; $200,000 was offered to cover the closing costs and the rest was a closing credit.

Similarly co-op boards may be more willing to approve a sale with a credit at the closing table versus a price cut.

It might seem like an odd thing to do, but it allows a building to keep the purchase price the same to maintain a certain dollar amount per square foot—the universal measuring stick of real estate, especially in competitive areas like NYC.

“Whether you are willing to negotiate closing costs really depends on the type of property and the location as well as the market,” Stone says. In other words, you may only need to play this card if sales are sluggish.

For many people, being able to buy an apartment or townhouse in New York City is a financial stretch, especially when interest rates are on the rise. Plus co-ops typically require ample cash reserves on top of a down payment. So it’s important to first factor closing costs into your total output and then to make all best efforts to reduce that amount.

Depending on the type of property you are buying, closing costs can run from 2 to 4 percent of the purchase price—more like 5 percent for brand-new condos. (Read Brick’s closing costs guide for a breakdown.) That’s a possible $40,000 in closing costs for a $1 million co-op or $50,000 on a new condo construction.

Because closing costs are highest for brand-new developments, simply limiting your search to existing buildings can help shave off a percentage point or two off the bat.

Otherwise, brokers and attorneys can help mine opportunities to lower certain fees and taxes at the bargaining table.

“A knowledgeable broker with lots of experience can guide buyers to negotiate and take advantage of all the available savings,” says Kayla Lee, a real estate agent at Serhant. “Whether it’s a buyers’ market, slow market, or the project is down to the last few units, there are often opportunities to negotiate closing costs.” (And remember: The seller pays your broker’s fee too!)

Read the following to be an informed and empowered buyer.

1. Beware the mansion tax

The mansion tax kicks in at $1 million, triggering a 1 percent tax for the buyer. At $2 million, the tax goes up to 2 percent, rising in stages until it reaches 4.15 percent on units at $25 million or more

“Buyers can avoid or at least reduce paying this tax by sticking to properties that are below the different thresholds,” Lee says. “For example, that $950,000 vs. $1.05 million property has a larger difference than meets the eye.” Go with the former and you can save $10,000 at closing. Likewise for a $1.99 million vs. $2.05 million loft.

You might be able to convince a seller to lower the asking price in a soft market, but not if there are other buyers lined up behind you. Just don’t expect to convince a seller to pay it for you—the math never adds up.

2. Avoid paying transfer taxes

Besides having a higher price tag, a newly built condo comes with higher closing costs than your average co-op. That’s because buying directly from the developer (or sponsor of a brand new co-op) means paying as much as 1.825 percent of the purchase price in transfer taxes imposed by the city and state to the tune of $18,250 on a $1 million condo (not to mention other costs some developers heap on to help run the building).

Lee’s advice? Buy an almost-new (pre-owned) unit instead. “When it’s a resale, the seller takes on various closing costs, including transfer taxes and the seller’s attorney fees, which are usually passed on to the buyers for NYC new construction.”

That said, in a soft market, you might convince some developers to cover at least some of these taxes.

Shaun Pappas, a partner at Starr Associates, says concessions have begun to creep back into the market with the high-interest rate environment. “Sponsors are more aggressive with the negotiations and are offering certain incentives to purchasers, such as free common charges for a year, transfer taxes paid on behalf of purchasers, and interest-rate buy-downs for a period of time.”

Daniel Gershburg, an attorney with Konner Gershburg Melnick Darouvar, says the negotiability of closing costs often depends on how well sales in the building are going. Specifically, for a building’s plans to be declared “effective” (or officially approved by the state Attorney General’s office), the condo needs to reach a certain percentage of sales.

Along those lines, Vickey Barron, a broker at Compass (who has represented many luxury developments), offers this tip: “Buy when the developers need a sale to meet the 15 percent occupancy rate for a pre-construction plan to be deemed effective or at the tail end of the sell-out when they have mentally moved on to their next building.”

3. Save on the mortgage recording tax

Condo and townhouse buyers who take out a mortgage must pay a state and city mortgage tax of 1.925 percent on loans over $500,000 or 1.8 percent for loans under $500,000 (note the tax is based on the loan amount, not the purchase price). 

But get this: If the seller has an outstanding balance on the original mortgage, you might be able to use a little-known tool called a purchase consolidation extension and modification agreement, or “purchase CEMA.” This legal maneuver involves combining the seller’s mortgage with the buyer’s mortgage and then modifying the terms to current rates.

You’ll need to work with an attorney to suss out the details. “A purchase CEMA can be the most effective way to save on closing costs, but the circumstances of your deal have to line up correctly in order to use it,” Pappas says. “The seller must have a high enough principal amount left on the mortgage to make it worthwhile. Both seller’s and buyer’s banks have to agree to it. And if all goes, depending on the loan amounts, there is the potential to save tens of thousands of dollars.”

For example, if the seller has an $800,000 mortgage balance and the buyer is getting a $1,000,000 mortgage, then doing a purchase CEMA can save around $15,400 in mortgage taxes. Bear in mind you may have to deduct $1,000 to $2,000 in extra fees to achieve those savings, but still. 

And Pappas says most sponsor sales involve a purchase CEMA as part of the negotiations, which can help make buying a brand-new condo more doable.

4. Buy new—and ask for a closing credit

New condo developers may be willing to pay buyers a closing credit rather than reduce the asking price of their units.

Gershburg says he’s aware of a building where the developer is offering a $500,000 concession on a $4 million cash purchase (it happens!); $200,000 is being offered to cover the closing costs and the rest is a closing credit.

This way the sponsor can get the sale without bringing down the purchase price and negatively impacting prices for other units. Call it big-picture bargaining.

5. Buy new—in a building with a hefty tax abatement

Finally, assuming the apartment fits within your budget—and the savings aren’t canceled out by covering the developer’s closing costs—buying into a building with a heavy tax abatement can significantly lower the cost of your monthlies for years to come.

Just be sure you can afford the monthly taxes once that abatement period runs out lest you end up having to sell it—and start the closing cost cycle all over again.

In 2022, spiking interest rates, inflation and a war in the Ukraine brought considerable change to commercial real estate and the U.S. economy overall. With interest rates and values eventually stabilizing, and all stakeholders rethinking the highest and best use of their property and capital, this year promises to be an interesting one, too.  Here are 10 trends likely to shape the events and transactions of 2023.

Rezoning Frenzy

In U.S. cities that zone commercial real estate, developers are prodding city councils to consider rezoning some districts to residential, said Shaun Pappas, a partner at Starr Associates LLP.

This trend has been underway for some time in Manhattan. Pappas believes it will become a greater movement as commercial vacancies increase and residential real estate continues being squeezed. With the housing market stifled by rising mortgage rates, creating more housing development opportunity could ease home prices.

Green Goals

Almost 40 percent of U.S. greenhouse gas emissions derive from building construction and operation, said Eve Picker, crowdfunding platform SmallChange.co founder & CEO. Developers and property managers must ensure building efficiency and sustainability, or risk being ignored by tenants and financiers alike.

“The new normal isn’t just about embracing ‘green,’ it’s about avoiding ‘red,’” Picker said. “If your operational or development costs start to show up in that color from a maintenance or climate risk standpoint, you’ve got no hope of being in the black.”

Credits and Incentives

As companies look to rebound from the pandemic, tax credits and incentives should play an even more vital role in launching projects, said Nancy Cox, partner and real estate industry leader for Top 50 accounting firm The Bonadio Group. To maximize profits, CRE execs will need to consider Low-Income Housing Tax Credits, Qualified Opportunity Zones and Historic and Brownfield Tax Credits, she said.

Stable Market

In the coming year, commercial real estate buyers and sellers will encounter a more stable market likely to furnish buyers with greater options, said Tomas Sulichin, president of the commercial division at RelatedISG Realty. The market, he believes, will be characterized by a slight increase in inventory.

“In the past years, buyers and tenants have been at the hands of owners and landlords,” he said. “We will soon see a market stabilization. These are all good signs of a healthy real estate market, which is cyclical.”

Top Tenants

Commercial real estate owners will aim to ink golden anchor tenants to long-term leases, Pappas said. “There’s a big push for long-term leases with significantly established tenants in restaurant spaces, technology or other types of ‘experience’ leasing, such as large fitness centers and spas,” he noted.

“I see commercial landlords looking for those types of tenants that are established and sacrificing significant rent or providing significant tenant allowances so they can lock in long-term leases.”

Transaction Restart

With high interest rates producing elevated cap rates and declining asset values, there will be insistence on higher returns on real estate investments than on alternatives providing less risk and more liquidity. “Illiquidity demands a premium, and that’s become more and more apparent as rates rise,” said Ran Eliasof, founder & managing partner of Northwind Group.

“We’ll see more transaction volume take place in 2023,” he continued. “Some lenders will force the hands of borrowers to make the transactions a reality, and there’ll be refis of deals done four years ago…not everyone will walk away happy.”

Race to Bottom

Prospects for office real estate will continue to be clouded, with occupancies lower and office tenants re-evaluating their needs in the face of remote work.
“It may get worse before it gets better; that trend will hold,” said Mitch Rosen, managing director and head of real estate for New York City-based Yieldstreet. “I think there’s somewhat a race to the bottom on price for some of the more inferior buildings. You’re not competing anymore on what the tenants are looking for. You’re competing on dollars. There are tenants for that appeal, but not high enough quality or quantity.”

15-Minute Cities

The pandemic deepened economic pressures and social inequalities existing before COVID-19, leading Americans to seek greater access to amenities, activities or job opportunities nearer their homes.

“The idea of the 15-minute city, where you can do all things you need to do within 15 minutes, has taken off since the pandemic,” said Karin Brandt, founder & CEO of coUrbanize, a community engagement platform for real estate development.

Brownfield Cleanups

ESG’s impact on real estate will be reflected in an increase in brownfield cleanups. In New York State, for example, the Brownfield Cleanup Program incentivizes the remediation and redevelopment of eligible contaminated properties by letting taxpayers reduce their taxable income by the cost of eligible cleanup expenses in the year they’re incurred.

“The credit is for between 22 and 50 percent of qualified remediation project costs and/or 10 to 22 percent of eligible construction costs,” Cox explained. “The credit percentage varies based on the version of the program the project qualifies for and the level of contamination.”

The credit can be claimed for various time lengths depending on credit component following the issuance of a certificate of completion by the New York State Department of Environmental Conservation.

Flight to Quality

Some forget, Rosen said, that there is still plenty of dry powder in real estate that will need to be invested in the next 24 months, referring to the “tens and hundreds of billions” raised in 2021 and 2022.

“It will be a flight to quality, better assets, better markets,” he said. “If you own superior assets the liquidity should be better than in tertiary markets and poorer assets. A rising tide lifts all ships. The first to see that investment will be the better-quality assets.”

As you may be aware, certain legislation was passed in 2019 significantly limiting the ability of building owners to convert their buildings to condominiums by requiring, among other things, such owners to sell at least fifty one percent (51%) of units to bona fide tenants in occupancy. Assembly Bill A8809/Senate Bill S8564, which was signed on December 16, 2022 by New York Governor Kathy Hochul and becomes effective 90 days from the date of signing, revises those requirements specifically for condominium conversion projects which meet the following criteria: (i) the building contains five or fewer units, and (ii) the building owner offers the unit that they or their immediate family member have occupied for at least two years. With regard to such buildings, the offering plan may be declared effective upon the execution and delivery of written purchase agreements for at least fifteen percent (15%) of all dwelling units in the building subscribed for by bona fide tenants in occupancy or bona fide purchasers who represent that they intend that they or one or more members of their immediate family occupy the dwelling unit when it becomes vacant. Our firm is in communication with the Department of Law to obtain clarification regarding the application of this new legislation to projects in which the building owner is an entity.

This is an encouraging development, since the unanimous passage of this legislation and its signing into law by our governor suggests that our lawmakers and governor are reconsidering at least some of the onerous burdens on building owners’ rights to convert to condominium ownership caused by the 2019 legislation.  As such, we are hopeful that this is the first step in correcting the 2019 legislation and promoting the condominium conversion market. If you would like to further discuss this update to the legislation, please contact Shaun W. Pappas, Esq. at 212-620-2684 or spappas@starr-lawfirm.com.

–  Monthly rent can run $6,000 to over $15,000 for a studio and $7,000 to over $20,000 for a one bedroom
– The cost includes 24/7 hospitality services, housekeeping, access to amenities, and group activities

These days the term “senior living” is not limited to retirement communities and nursing homes. Independent living developments now cater to healthy, active, self-sufficient residents and in dignified settings that emphasize wellness.

The concept isn’t exactly new. But modern iterations swap golf courses and Bingo for a full slate of daily activities—educational, cultural, and otherwise. And this being New York City, the idea is getting upscale treatment with a handful of luxe independent living communities.

Still, navigating the senior living space in NYC can be confusing. For starters, developments tend to offer different levels of care—independent, assisted/enhanced, and memory care—all under one roof.

Perceptions of traditional facilities can be an obstacle to understanding modern senior living residences. “This is often the first conversation we have with prospective residents,” says Rocco Bertini, executive director of The Watermark at Brooklyn Heights.

Shaun Pappas, a partner at NYC law firm Starr Associates who works with developers of luxury residential properties as well as hospitality groups, agrees there’s confusion on all sides.

“One of the biggest distinctions is that these new senior living residences are presented as a community of similarly aged individuals living together with different types of amenities and activities. However, they typically do not provide medical treatment or oversight, though they may offer a certain quality of life and health initiatives. It is less about ‘care’ and more about ‘community’ and ‘wellness,'” he says.

Brick dug deep to answer common questions so you know what to expect and can make informed decisions in exploring your options.

Why would someone want to live in an independent living residence?

Imagine no longer having to deal with household chores and routine maintenance while living in a private apartment and remaining independent in going about the day. You’ll also have convenient access to amenities, services, and scheduled group activities that make life easier and more enjoyable. (More on those below.)

And even though these places are designed to offer everything on site, residents stay connected to the surrounding community and all the city has to offer through partnerships with museums, schools, and other organizations. Want tickets to the opera or theater? A concierge is there to help. Meeting a friend for lunch across town? Transportation is available.

What kinds of care are available to independent living residents?

Senior living residences are geared toward people (we see you Baby Boomers!) who are looking to maintain a certain lifestyle and don’t require round-the-clock medical care and advanced support at skilled nursing homes.

That said, many senior developments offer independent living as well as assisted living (for people who need personal care with daily tasks such as getting dressed and managing medication) and memory care (for residents with Alzheimer’s or other forms of dementia). Residents can transition to another level as needed, without having to move to a new development or even a new unit (though memory care residents have enhanced units on designated floors.)

And because these buildings are licensed by the state as assisted living facilities, they provide a similar level of care as nursing homes, says Joanna Mansfield, registered nurse and general manager of Coterie Hudson Yards. They also tend to make up the difference by outsourcing medical and emergency care services that are made available to residents as needed.

At Coterie, for example, concierge emergency provider Sollis Health has offices in the building. Sunrise East 56 has contracted Northwell Health to give residents access to an attending physician. One resident named Allen says, “Northwell’s expertise made it easy for me to transition under their care. I use it for all my medical needs now and have dropped most of my other specialists.”

What are the units like?

The individual units are unfurnished, come with a private bath, and look just like regular apartments.

There’s usually a variety of floor plans for studios and one-bedroom units with either kitchenettes or full kitchens. Newer developments sometimes have two and three bedrooms and even penthouses.

As with all residential buildings in NYC, the design ranges from pre- and post war conversions to brand-new high rises.

How much do they cost?

It helps to have an understanding of the potential fees and costs to avoid sticker shock—suffice to say that rents are steep.

That’s especially true for the brand-new upscale communities cropping up across the city. “These developers have identified an affluent aging community and are creating a niche,” Pappas says.

Independent living studios tend to start at around $6,500 per month and two bedrooms can top out at close to $40,000 per month, with lots of wiggle room in between those figures depending on the type and location of the building.

Units at even established senior residences like Atria West 86, which opened 20 years ago, start at $8,300 per month.

Shared units will typically be charged an additional fee. For example, The Watermark charges a second occupancy fee of $1,495 a month.

What’s included in the monthly rate?

Generally speaking, the monthly rent covers utilities, weekly housekeeping/linen service, and maintenance, plus 24/7 hospitality and the use of all amenities. Most (if not all) buildings in NYC include a fitness center, indoor swimming pool, library, salon, and transportation (on-demand cars or scheduled vans) within the city.

A daily schedule of activities—tai chi, writing workshops, wine tastings, you name it—is baked into the rent as well.

Three meals per day are also included, often created by chefs in stylish settings, though cocktails are on you (other beverages are free).

Some places charge a one-time membership or introductory fee on top of the rent, so be sure to inquire about that. For example, Brookdale Battery Park City charges a one-time community fee to new members, equal to one month’s rent, but that is transferable to all Brookdale communities across the country.

Other services (such as at an on-site salon or spa) will be a la carte, as are catered meals for private gatherings. “Families love to congregate here for holidays and special occasions and avoid having their loved one travel in lousy weather,” Mansfield says.

What are the lease terms?

Leases are usually month to month. Refund policies vary. Bertini says The Watermark will refund a prorated portion to anyone leaving other than the last day of the month and with 30-days’ notice in writing of termination. Brookdale has a similar policy but requires a 60-day written notice.

Deposits are generally required to hold a unit; whether these are refundable depends on the building. (The Watermark has a fully refundable $5,000 deposit to hold a unit for 30 days.)

Is financing available?

The answer is no. As with any rental, you’ll be expected to pay out of pocket, though most places accept credit cards so you can rack up points.

Residents often use money from selling a home to cover the costs or rely on retirement savings, pensions, investments, or private loans. Note that long-term care insurance and life insurance policies sometimes cover assisted living and memory care but not independent living, unless some level of personal care is being provided.

As always, it’s wise to work with your financial advisor to figure out a realistic budget and identify ways to cover costs.

What happens during an initial visit?

Start by calling to schedule an appointment rather than just dropping by, and find out in advance how long you are invited to stay.

At Atria Senior Living locations (Atria Forest Hills, Atria Riverdale, and Atria West 86), visitors are encouraged to “attend an art class…join us for hors d’oeuvres…experience the community.”

Other buildings Brick spoke to invite people to sample a meal or tour the dining options along with viewing different types of units and all the amenities.

The number of visitors is no longer restricted due to Covid but masks may still be required.

Are pets allowed?

This depends on the property, but the majority tend to accept pets and some even offer dog-walking services (for a fee).

What safety protocols and security policies do they have?

Across the board, these communities provide 24-hour surveillance in addition to a full-time attendant or security officer manning the entrance.

Wearable medical alert systems are usually offered to each resident.

Finally, it’s worth asking about preventive safety measures in regard to Covid and other communicable health risks.

Starr Associates is proud to announce that its own Evelyn D’Angelo, partner, has joined the faculty of Brooklyn Law School as an Adjunct Professor of Law.

Professor D’Angelo will be teaching a course entitled Law of Co-ops, Condos, & HOAs during the spring 2023 semester, which will examine the law of condominiums, cooperative corporations, and homeowners associations, with an emphasis on the practical considerations that influence developers, owners, and governing boards. Topics to be explored include government regulation of the development process including the role of the New York State Attorney General, sales, and leases, building operational considerations, and the rights and obligations of developers (in their role as sponsors), governing boards, and unit owners.

Ms. D’Angelo practices in the firm’s development and offering plan group, boasting nearly 10 years of experience handling complex residential, commercial, and mixed-use developments, including the preparation and filing of offering plans, the creation of condominiums, co-ops, and HOAs, contract negotiations, and other related real estate transactions.  She joined the firm in 2013.

Ms. D’Angelo graduated with honors from Brooklyn Law School, where she was published in the prestigious Brooklyn Law Review and was a member of the esteemed Moot Court Honor Society.  In addition, Ms. D’Angelo holds a B.A. from the University of Notre Dame and an M.A. from Bowling Green State University.