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How Two Words In A Ground Lease Destroyed Millions Of Dollars Of Value

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Gratuitously complex formula

It was a very common and typical deal provision: the rent under a 99-year ground lease would increase every year based on changes in the consumer price index (CPI) in that particular year, but the increase was always limited to a range of 2% to 5%. Each year the parties would look at how much the CPI had risen in the preceding year. The rent would then go up accordingly, but always by at least 2% and never by more than 5%. This gave the property owner a reasonable hedge against inflation and protected the tenant from runaway rents.

Then the lawyers got involved. When the rent increase formula was translated into ground lease language, it resulted in a single sentence that continued for 16 lines, containing more than 200 words. That one sentence occupied about a third of a page. It had all kinds of clarifying phrases. It made the same points several times. It included seven separately lettered subclauses.

In calculating each year’s consumer price index, the formula in the ground lease said to go look at the “Base Index” every year, and then measure how much the CPI had increased over the “Base Index.” The “Base Index” certainly sounded like an appropriate starting point for the measurement. It was obviously the base from which each annual calculation would be made.

There was just one problem in the 16-line formula: the benign-sounding “Base Index” wasn’t as benign as it sounded. The Base Index didn’t actually mean the previous year’s CPI. Instead, the definition of this benign-sounding term said the “Base Index” was actually the CPI in effect at the Commencement Date of the ground lease. That definition appeared in the ground lease 13 pages before the annual rent adjustment formula.

Because every year’s CPI adjustment referred back to the CPI at the Commencement Date instead of the previous year’s CPI, every year’s CPI increase started out by measuring the entire increase in the CPI since the ground lease was signed. The rent would then go up, each year, by that entire increase, but subject to an annual cap of 5%. Net effect after the first couple of years: instead of rising within a band of 2% to 5% every year depending on each year’s CPI increase, as the business deal contemplated, the rent would rise by 5% every year, pretty much no matter what.

The landlord refused to change the reference to the Base Index and insisted on applying the ground lease in accordance with its terms. So the landlord claimed it was entitled to, in effect, an automatic 5% rent increase every year, even if the CPI didn’t go up at all in the previous year. This would continue for the remaining term of the 99-year ground lease.

The tenant estimated that the use of the commencement date Base Index – rather than a Base Index referring to the previous year’s CPI — destroyed tens of millions of dollars of value in the tenant’s leasehold position.

A problem like this could happen to anyone in any complex legal document. “Base Index” didn’t remind the reader what the phrase actually meant. Any correct-sounding general phrase used in a legal document doesn’t necessarily mean what it sounds like it means. It might well mean something else. A simple concept might be expressed in so many words that it becomes impossible to understand. Readers have to keep so many words in mind that they miss a fundamental error.

In this ground lease, whoever wrote the 16-line rent adjustment paragraph obviously wanted to confirm and clarify many important details about the adjustment formula. But the writer failed to confirm and clarify the one thing that mattered most. And no one reviewing any draft of the document for the tenant ever picked up on the anomaly.

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Real Estate

A Monument To Catalan Modernism Asks $5.9 Million In Barcelona

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Palau de la Musica

The distinct architecture of Barcelona, with its curved shapes, floral motifs and ornamentation, is defined by its Catalan Modernism. The aesthetically pleasing style was a major force in the larger Modernisme movement, which also permeated art, theater and literature at the end of the 19th century.

This recently refurbished Modernist house is located in the area of Tibidabo Mountain, the tallest hill in Collserola Natural Park, an expansive green space within Barcelona, the capital city of Catalonia.

Villa Paula, as it is known, was designed in 1912 by Spanish architect Jerome Granell Manresa. He is known for creating the stained-glass windows of Barcelona’s famed concert hall, Palau de la Música Catalana. Other examples of the stained-glass maker’s work can be found locally in the landmark Navàs House and the Hospital of the Holy Cross and Saint Paul.

Manresa’s use of sgraffito on stucco exteriors—to create contrasting color designs by scratching through the facade to reveal the layer below—remains in evidence on select residential buildings today.

The more than 8,200-square-foot home retains such original and restored Modernist features as the facade, the mosaic tilework, the high ceilings with moldings, the stained-glass windows and the Arabic-style roof crowned with green tiles. The four floors are accessed by a marble staircase and an elevator. The watchtower can serve as a guest house, an office or a studio.

The light-filled rooms have hardwood, marble or mosaic-tile floors, air-conditioning and in-floor heating. There are eight bedrooms, a conservatory, a home theater, a gym, a wine cellar and eight bathrooms.

The 10 acres of grounds contain gardens, terraces and mature trees. A gently curved staircase off the house leads to a terracotta veranda surrounding an infinity pool. A wooden deck below the pool level creates another outdoor lounging space. Views take in Barcelona and the coastline along the Mediterranean Sea. 

A two-car garage and a workshop complete the gated property.

Cristina Martinez of Immobiliaria Rimontgo is the listing agent for the estate, priced at approximately $5.93 million (EUR 4.95 million).

Villa Paula is located about five kilometers, or three miles, from Barcelona’s city center. International flights are available from Barcelona–El Prat Airport, about a 20-minute drive away.


Immobiliaria Rimontgo is a founding member of Forbes Global Properties, a consumer marketplace and membership network of elite brokerages selling the world’s most luxurious homes.

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Here’s Where Property Taxes Are The Highest And Lowest

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Mansion in San Francisco

Buying a home is exciting, but it’s also a huge commitment. And one of the responsibilities of homeownership is paying real estate taxes. How much you will end up paying can vary significantly depending on a variety of factors — from how much your home is worth to where you live.

To illustrate just how much variance there is in the amount of property taxes people pay, LendingTree looked at the median amount of real estate taxes paid in each of the nation’s 50 largest metropolitan areas. In doing so, the online lending marketplace found that homeowners in some metros can expect to pay thousands of dollars more per year than homeowners in other parts of the country.

“Different county and state governments assess property value in different ways, which can contribute to why tax amounts vary so significantly across the country,” says Tendayi Kapfidze, chief economist at LendingTree, explaining that individual areas also have different tax rates and offer different tax breaks to homeowners, which can also affect how much people are paying in real estate taxes.

Revenue generated from property taxes is generally used to fund local projects and services such as fire departments, law enforcement, local public recreation, education, street maintenance and sanitation.

The median real estate tax amount in Las Vegas — where homeowners pay the least in property taxes — is about $7,700 cheaper than in New York, where real estate taxes are highest.

Las Vegas and Birmingham, Alabama are the only two metros where median real estate taxes amount to less than $1,000 a year. The median property tax amount paid by homeowners is $696 in Las Vegas and $892 in Birmingham.

Besides New York, homeowners pay the most in property taxes in expensive cities like San Jose, California and San Francisco. The median amount paid is $8,400 in New York, $7,051 in San Jose and $6,181 in San Francisco.

“Despite these regional differences, how much homes are selling for in a given area is usually the most important factor in determining an individual home’s value, regardless of where you live,” says Kapfidze. “As a result, places where home prices are higher like New York and San Francisco are more likely to pay higher real estate taxes than other parts of the country, even adjusting for variations in tax rate or appraisal practices.”

Real estate taxes are an average of $641 lower on homes without mortgages. Because property taxes are based in large part on home value and homes without mortgages tend to be worth less than those with mortgages, it makes sense why this is the case. Nonetheless, real estate taxes on homes without a mortgage can still be pricey, especially in areas like Salt Lake City and Seattle.

“I think it’s fair to say that knowing how much you’ll pay in property taxes is about as important as knowing how much your mortgage payment will be,” says Kapfidze. “After all, both are things you have to pay in order to keep your home, and both can be significant expenses.”

Many lenders will roll your property taxes into your monthly mortgage payments, and then use that money to pay your tax bill for you when it’s due to the government.

“As a result, while you should always double check to be sure you’re paying what you owe in taxes, you might only need to keep track of one payment a month,” explains Kapfidze. “If you’ve paid off your mortgage, then you definitely have to keep a closer eye on property taxes as you’ll likely no longer be able to count on your lender to keep track of them for you.”

Here’s the LendingTree report, including the methodology, and full list of cities where real estate taxes are highest and lowest.

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How Digital Technology Changed The Face Of The Mortgage Industry

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Focused man and woman using laptop, checking financial documents

The rise of digital technology ushered in a new era for the mortgage application process as borrowers took advantage of historically low interest rates and lenders embraced digital mortgages more than ever before.

A new survey on borrowing and lending by ICE Mortgage Technology finds that the pandemic has permanently changed the way consumers utilize technology, and those looking to buy or refinance a home are seeking lenders who offer online tools to complete their mortgage loans from home.

The overwhelming majority (90%) of lenders believe that technology can help improve the mortgage application process, citing benefits that include simplifying the entire process (74%), reducing time to close (70%) and minimizing data entry (67%).

“Last year brought our industry a perfect storm,” said Joe Tyrrell, president of ICE Mortgage Technology. “You not only had COVID, which required lenders to shift to virtual workforces, but you also had to continue to conduct business in a safe and socially distanced way with borrowers, all happening at the same time that we were experiencing a historical increase in loan volume.” 

He added, “This caused many lenders to re-evaluate their technology partners, how they were leveraging technology, the systems that they employed, and the tools that they relied on. We heard many stories from our lenders across the country that had to completely and permanently shift the way they served borrowers.”

According to the survey, the importance of lenders offering digital solutions such as online applications during the lending process increased for borrowers in 2020, with 58% saying it would likely affect their lender decision (up from 50% in 2018). While still important, the offering of a mobile app specifically was less likely to influence borrowers’ lender selection, with 47% saying availability of one would factor into their decision in 2020 (compared to 40% in 2018).

Homeowners who used an online application appreciated the simpler application process (55%), reduced time to close (53%) and resulted in fewer in-person interactions (49%).

Not surprisingly, decreased in-person interactions grew in importance in 2020, as just 37% of consumers in 2018 cited “no need to meet in person” as something they liked about their online application process. Whether they had been through the mortgage loan process or not, 64% of consumers surveyed believe that an online mortgage process would make buying a home or refinancing easier than an in-person process.

“From a borrower’s perspective, the pandemic has accelerated the demand for a consistent, digital first borrowing experience,” said Tyrrell. “Signing documents electronically is quickly becoming the minimum, and borrowers expect a seamless experience from start to finish. In 2020, many lenders cobbled together different solutions to meet borrower demands, but that often led to a more confusing, fragmented process. Covid highlighted the need for a single consistent digital experience for consumers.”

Currently, online applications and online portals are the digital tools most offered among lenders, with more than nine in 10 offering both options to borrowers (91%). Of lenders who offer online applications, 64% said more than half of all loan applications are submitted online, while 38% said more than 80% of their applications were completed online in 2020. However, traditional loan application methods may be more common at larger organizations. Half of large institutional lenders, or those with 200 or more employees, indicated that less than 50% of their loan applications were submitted online.

Borrower respondents who were offered online and/or mobile options by their lenders took advantage of those tools during the mortgage loan process. Sixty-one percent of borrowers used an online application in 2020, slightly up from 58% in 2018. Sixty-one percent also used an online portal for electronically signing and notarizing documents, compared to 56% in 2018.

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