EQ. Magazine https://equicapmag.com An Equicap Publication Thu, 12 Dec 2019 00:24:34 +0000 en-US hourly 1 https://wordpress.org/?v=5.3.2 https://secureservercdn.net/198.71.233.129/xbn.b3a.myftpupload.com/wp-content/uploads/2019/07/cropped-browser-32x32.jpg EQ. Magazine https://equicapmag.com 32 32 Equicap Closes Acquisition Loan in 4 days https://equicapmag.com/paulus-hook/?utm_source=rss&utm_medium=rss&utm_campaign=paulus-hook Thu, 12 Dec 2019 00:06:14 +0000 https://equicapmag.com/?p=7709

A guide to speed

Certainty of execution matters in the transaction business. When a long-term client approached Equicap with the acquisition of a 19-unit apartment building in the Paulus Hook section of Jersey City, the team acted quickly. The client’s 1031 exchange was up against a deadline and with only 4 days remaining, Equicap went to work right away.

The real estate business is based on human capital — long-term relationships fostered over many years and developing trust with financial institutions and clients. Transparency is critical to close a deal in less than a week. Commercial real estate transactions are driven by information asymmetry — last minute surprises kill deals. An experienced team knows how to conduct due diligence and tackle potential issues early on.

Another critical component, finding a lender who has a flat hierarchy and where decision making is concentrated in the fewest hands. It helps if a lender doesn’t need to sell an A-note to leverage its position or raise the money in a syndication and find a co-lender to participate in the deal. Discretionary capital is key to speed.

The borrower stated, “Equicap was not only able to go seemingly effortlessly through the due diligence checklist, but also negotiated favorable terms.” When speed is important, borrowers often have to make sacrifices on rate and terms. Equicap negotiated a loan that is prepayable at any time without any exit fees and minimum interest allowing the client to execute on his business plan — renovate units, bring rents to market and refinance with a permanent loan. All within less than a week’s time.

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Creative Construction Financing https://equicapmag.com/550-metropolitan/?utm_source=rss&utm_medium=rss&utm_campaign=550-metropolitan Tue, 29 Oct 2019 17:28:45 +0000 https://equicapmag.com/?p=7025

Equicap arranges equity and debt financing for a boutique condo development in Williamsburg

Over the past fifteen years, Williamsburg, with its new condo owners and strong rental mix, has transformed from an artist community into one of the most popular residential and entertainment neighborhoods in New York City. This transformation has not been without its own issues, and in an effort to improve infrastructure and access to Williamsburg, it was announced in 2017 that the L Train would be shut down for several years starting in 2019 to repair damage caused to the tubes that connect Manhattan and Brooklyn by Hurricane Sandy. This news froze the residential and commercial market. Some relief came when it was subsequently announced that subway closures would last only 15 months, then only a month before the subway was scheduled to close, the repair schedule was scrapped and it was announced that a modified, less invasive operation could be enacted to implement the improvements. In the meantime, thousands of rents had been negotiated, hundreds of properties sold at a discount, and commercial property sales and development had stalled. 

550 Metropolitan sits at the epicenter of the neighborhood, close to the Metropolitan Avenue/Lorimer Street subway station and an easy walk to the many independent boutiques, diverse dining options, rich cultural offerings, long standing local businesses and big retail players such as Apple and Whole Foods that now define Williamsburg. The owners, having faced delays in obtaining access and underpinning agreements from neighboring properties, and later demolition delays, were looking at an equity gap, further exacerbated by the looming L Train shutdown. Their then construction lender, eyeing the imminent maturity date, offered renewal terms at a reduced loan amount to adjust to a lower cost basis. Unable to provide the equity, construction ground to a halt, and for a year the property remained lifeless, the interest reserve quickly draining away.

The owner of 550 Metropolitan Avenue brought in Equicap, who found a seasoned developer who injected fresh equity into the project and new construction debt allowing the partnership to pay off the existing loan, pay off some of the partners and secure the funds needed to continue. The mixed-use property is expected to be completed next year.

Undoubtedly financial damage was done to the real estate market, like at 550 Metropolitan Avenue, but it was considerably less than if the L Train shutdown had occurred earlier this year. The market is bouncing back and 2020 brings a new year of opportunity for the neighborhood. With established developers like Two Trees already making their mark at 325 Kent Avenue, there are plenty more opportunities to catch this rising tide. It will take savvy buyers and financiers like Equicap who take a team-based approach to sift through the prospects, to find those opportunities and act on them.

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3.95% 10-Year Interest-Only https://equicapmag.com/chase-chicago/?utm_source=rss&utm_medium=rss&utm_campaign=chase-chicago Tue, 20 Aug 2019 18:48:30 +0000 https://equicapmag.com/?p=4281

Daniel Hilpert, Managing Director at Equicap, is pleased to announce the closing of a $2.8MM acquisition loan on a NNN leased property outside of Chicago, in Cook County, Illinois.

The property is leased to Chase. The client, a NY-based seasoned real estate owner and retail investor, engaged Equicap for best-in-class execution and market access. Investors seeking competitive investment yields, count on Equicap to source, execute and close on deals across the country, while still providing its signature boutique service.

Sally Wang, Manager/Closer at Equicap, stated, “it was our dedication and proactive approach on every facet of the deal that resulted in a seamless transaction and a satisfied client.” It’s not every day that a New Yorker finds the right investment fit in Chicago. Equicap made it happen, linking the client with a lender who provided a 10-year interest only loan at a fixed rate of 3.95%.

Per the borrower, “Sally was on the case all day, every day. That’s what you want in your closer.”

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Spectacular Gem https://equicapmag.com/spectacular-gem/?utm_source=rss&utm_medium=rss&utm_campaign=spectacular-gem Tue, 30 Jul 2019 01:06:24 +0000 https://equicapmag.com/?p=3597 Equicap arranges joint venture equity for ultra-luxury condominium on the Sag Harbor waterfront

The big news in Sag Harbor these days regards a fresh new townhome development on waterfront land at 2 West Water. Long a civic embarrassment, the site for years had housed a dilapidated, moldering structure known as the 1-800-LAWYER building. The ramshackle hovel had served as condos, then as a single-family residence. Over time, it had eventually decayed into a vacant blight on the otherwise picturesque shoreline.

Two previous developers had attempted to create something new on the parcel but had been met with abject failure. Among reasons for those bungled attempts was the density of proposed developments on the land, the first for 18 residences, the second for 13. Not surprisingly, the number of residences proposed led to sizable resistance from village residents and officials, who sent the fledgling efforts to a quick and certain defeat.

As they say, the third time is the charm. Local real estate veteran Jay Bialsky, for 25 years a successful single-family home developer, bought contiguous waterfront lots at 1, 3 and 5 Ferry Road—as well as the parcel at 2 West Water Street—becoming the third developer to attempt a project on the site.

Equicap has been a participant in the project since the initial acquisition of the property in 2005, having arranged acquisition and construction funding for the developers. Terming Bialsky “a perfect fit for this project,” Equicap founder and managing director Daniel Hilpert said shepherding the project has meant overcoming a number of hurdles. “But through the efforts of Jay Bialsky,” he said, “We’re poised to move forward with a townhome development every bit as gracious as Sag Harbor itself.”

What had not been accomplished in 12 years Bialsky managed to pull off in fewer than a 12-month span. Less than a year after taking the reins, Bialsky had won village approval for a new development of three townhomes and a half dozen 50’, deep water boat slips.

As a result of several variances, the four-story townhomes will feature below-unit parking as well as rooftop pools, and each level boasts outdoor decks. Including both interior and exterior space, the residences will range in size from 11,000 to 16,000 square feet. From their high-end designs to their astonishing features and finishes, the town homes are intended to appeal to the discerning tastes of a global elite seeking a “Cote d’Azure of the Hamptons.”

The townhomes’ lower density and unique design proved one key to approval. Another key was the agreement Bialsky forged to sell a portion of the parcel to the village of Sag Harbor for a 1.25-acre park. That green oasis will spread across part of the Ferry Road parcels, while the trio of highly distinctive townhomes will fill the Water Street address.

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Is it time for a new contractor? https://equicapmag.com/contractor-issues/?utm_source=rss&utm_medium=rss&utm_campaign=contractor-issues Mon, 29 Jul 2019 23:25:02 +0000 https://equicapmag.com/?p=3582

Early Warning Signs of a Problem Construction Project

It doesn’t matter where you live, New York, the Hamptons, or the Vineyard, construction is everywhere. While it is a nuisance when a new building is being constructed, or when a new piece of infrastructure is being added, what is worse is when the site doesn’t change, week after week, month after month, or worse yet year after year. It has been said that “no one plans to fail, they only fail to plan”. That seemingly convenient adage is typically said after-the-fact, following countless developers and land owners that have attempted to navigate the roller coaster ride known as commercial construction. Even with a coordinated plan, things still go wrong. It is certainly the norm and not the exception that construction projects are delayed. Reasons for these delays can include weather, unforeseen conditions (sometimes literally buried), plans coordination, poor staffing, etc.. the list goes on and on. What can be done about these delays? Better yet, we can consider the more useful question and ask if there are any telltale signs that indicate troubled waters ahead?

The following are the most common early warning signs that tend to be seen on problem construction projects accompanied by a few suggestions on how to identify them. These are indicators that there may be issues, and it is encouraging that, as developers and real-estate minded people, we can start to ask the tough questions to head off a problem project. A proactive approach is always recommended and like in most things, communication is key.

Vacant site, poor staffing
If when inspecting your site, you notice that the number of workers is low on a day-to-day basis, this could indicate that the general contractor does not pay well or is cash-strapped. This could lead to further poor staffing, liens, and quality issues. A developer should try to request lien waivers from their GC and subcontractors, preferably on a 2- or 4-week look ahead and perform more frequent site visits. A discussion with the GC regarding the workers and construction quality may also be merited.

The GC has high turnover
Workers vote with their feet and people don’t leave when they are happy and fulfilled. This will impact productivity and there could be sabotage and poor morale. Address this head on with the GC.

Poor building trade coordination
If a site has inefficient supervision and/or overseeing staff are not present, especially with multiple subcontractors on site, delays are bound to occur. When more than one subcontractor is attempting to work in the same space at the same time, one will have to delay their work. This postponement can cause further delays if a subcontractor must reschedule, setting off a daisy-chain reaction of interruptions. Cost overruns are bound to happen if a subcontractor’s work has to be removed and redone because its completion blocked the access point for another contractor. A qualified superintendent is the leader and is one of the most critical individuals driving the project towards a successful and timely completion.

Product and installation quality are poor
If on a site inspection the developer or worse yet, the Bank’s inspector, notices that the GC may be downgrading specifications and labor to save some extra dollars, they should be very wary of value engineering. Communicate proper specification adherence and confirm that proper inspectors are examining the performed work before walls and ceilings are closed.

A poor housekeeper
A messy site is often a sign of oversight issues which can lead to accidents, stop work orders, rats, low morale, etc. Insist on daily, weekly, and monthly checks and logs and additional laborers. A clean and tidy site is a safe site, and an efficient site.

The job has unsafe conditions
Safety violations and dangerous worker conditions can jeopardize the development of sit with just one accident. If Personal Protective Equipment (PPE) is not being used, fall protection is missing, and workers in elevated locations are not tied off – these are all red flags and should be addressed immediately.

The GC is change order happy
Many change orders, even ones with small amounts, add up and could mean the GC has improperly budgeted and planned. Design professionals and consultants need to verify the scope of the project and agree upon unit costs up front (like cubic yard per concrete of underpinning). A developer should have agreed upon mark ups for General Condition, Profit, and Overhead. Many banks charge additionally for change orders, and require further inspections, which could delay the development.

The project can’t close out or continuously fails municipal inspections
When plumbing, framing and other municipal inspections are failing it could signal a much deeper problem like poor trade coordination, oversight, or lack of skilled trades. Start tracking close out requirements well before the project is completed. Most building inspectors are reasonable, but clear communication is a must.

Kenneth F. Wille, PE is President and CEO of KOW Building Consultants, a building and construction consulting firm headquarters in New York.

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The 2019 Equicap Supercar Rally at Gurneys https://equicapmag.com/2019-equicap-supercar-rally-at-gurneys/?utm_source=rss&utm_medium=rss&utm_campaign=2019-equicap-supercar-rally-at-gurneys Wed, 17 Jul 2019 15:27:21 +0000 https://equicapmag.com/?p=2574
“Another parking lot packed with Ferraris Maseratis, and Porsches. Then the party at the beach spun by DJ Axelle — epic!”
Daniel Hilpert
Publisher, EQ. Magazine
“Our largest rally yet!”
Pete Falco
EQ. Magazine

A beautiful collection of some of the best sports cars on the market

An elegant suite of Hublot watches were showcased.

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Unparalleled Aesthetic Splendor https://equicapmag.com/polo/?utm_source=rss&utm_medium=rss&utm_campaign=polo Sun, 07 Jul 2019 23:11:54 +0000 https://equicapmag.com/?p=2090

Staged in perfectly manicured bucolic idylls, and perceived as the preserve of only a genteel aristocratic elite, polo is one of the most technically nuanced, strategically complex and aesthetically dynamic sports in the world

The sport of kings dates to nomadic warriors in classical antiquity more than 2½ millennia ago. Used for training cavalry, the game was played from Constantinople to Japan in the Middle Ages. The polo grounds of Tamerlane, a Turko-Mongol ruler of the Balas lineage who conquered vast parts of Asia and founded the Timurid dynasty in the fourteenth century, can still be seen in Samarkand in Uzbekistan. The first recorded polo tournament was in 600 BC when the Turkomans beat the Persians in a public match. The Persians and the Mogul conquerors spread the game across the eastern world where it fast became the port of choice of the ruling elite. 

Modern roots of polo date back to the mid-19th century. An Irishman, Captain John Watson, of the British Cavalry 13th Hussars created the first set of written rules for playing polo. The first club was established in the town of Silchar in Assam, India in 1834. Forty years later, in 1874, the Hurlingham rules were created and marks the moment when the modern sport became standardized and codified. It was also featured at the Olympic games from 1900 through 1936. 

The game of polo is remarkably straight forward. Two teams, each team consisting of 4 players and their mounts, attempt to score goals by driving a small white ball into the opposing team’s goal using a long-handled mallet ranging in size from 48 to 54 inches (based on the height of the pony). The team with more goals at the end of the match is declared winner. 

Polo is played in four to eight 7.5-minute periods called chukkers. Positions are fluid — players are expected to transition around the field, a 160-yard-wide by 300-yard-long area and fill in where needed. However, the most offensively minded player is typically positioned highest up in the stack and focused on scoring. 

Polo boasts an unrivalled intensity. The sport requires considerable physiological strength, huge muscular and cardiovascular endurance. Core strength is key to power the strokes as a player leans over the side of their 16-hand high, 1,100-pound mount at top speed in a race for a loose ball against an opponent. Mental resilience is required to not pull out when players urge their mounts directly towards the same ball at speeds in excess of 30 miles per hour.  

Polo uses a handicap system delineated in “goals” to rank players ranging from -2 up to 10. Teams are built to have matching handicaps. Most professionals are rated 4 goals and above. A player 7 goals or higher is among the top players of the world. This handicap system has the convenience of also allowing experienced polo players and teams to be matched against those just getting into the sport. See you on the field.

 

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Classic Living https://equicapmag.com/hamptons-classic-living/?utm_source=rss&utm_medium=rss&utm_campaign=hamptons-classic-living Sat, 06 Jul 2019 19:47:27 +0000 https://equicapmag.com//?p=142

There is nothing like Summer in the Hamptons to pique equine interests and see some of the world’s finest horses in action. From the exhilarating, heart-pounding excitement of the Southampton Polo Club to the glitz of the Hampton Classic, the East End is unparalleled on the outdoor show riding circuit.

An Equine Traditon
The Classic as we know it today began in 1976. But its roots trace back to the early 1900s when an annual horse show was held in Southampton off First Neck Lane overlooking Agawam Lake. The event was held every year until the outbreak of World War I. It returned in the 1920s at the Southampton Riding and Hunt Club which had its headquarters north of Southampton Village on a property along Majors Path. The show was held every year throughout the 1930s, but it came to an end in the 1950s when the Southampton Riding and Hunt Club broke up. At that time the role of the Majors Path farm as home to the Hamptons’ prized horse show came to an end.

Even after the disappearance of the show, riding remained popular in the Hamptons. By 1970, several horse farms were established on the East End including Stony Hill Stables, the Topping Riding Club and Swan Creek Farms. These farms held small unrecognized shows and were also the first ripple of an equestrian wave that would steadily crest across the Hamptons over the next half-century and resulted in the Hampton Classic Horse Show During the 1980s, the Classic became an entrenched part of the Hamptons social scene. The excitement is most palpable on “Grand Prix Sunday.” But despite all its gloss and celebrity flash, the Classic’s true foundation is the surrounding community. The rise of the local riding scene has paralleled the rise of the Classic. What was once home to a handful of small stables has grown into a horse-riders paradise with large equestrian estates.

Steeped In History
Every so often, a real estate agent has the opportunity to list one of the Hamptons’ stunning equestrian properties boasting acres of open space with beautiful pastures, expansive fields and breathtaking homes to match.

One of the largest horse farms in the Hamptons today is Two Trees Stables on Hayground Road in Water Mill. Originally constructed as a farm in the early 20th century, the property was previously known as the old Carwytham Farm. When David and Jane Walentas purchased it from the Baldwin family in 1993 they undertook a major restoration and expansion of the property.

Today, Christopher Burnside, an Associate Broker with Brown Harris Stevens, has the listing on this coveted 65-acre equestrian estate. Two Trees Stables is known as the former site of the Mercedes-Benz Polo Challenge. The estate features three horse barns with tack rooms, lounge and bathrooms, two indoor riding arenas, an extensive staff quarters and acres of paddocks and polo fields.

Whether you’re looking for a gentleman’s farm with a few stalls, a state-of-the-art equestrian estate or a facility with polo fields, the Hamptons offers it all. Dana Trotter, Associate Broker and Senior Global Real Estate advisor with Sotheby’s International Realty, who has been an avid rider all her life says, “working with a broker who understands the intricacies of properties tailored for show jumping, polo, dressage or even a lovely gentleman’s farm will save time and frustration for the buyer.” Also, many farms are not officially listed, so it helps to be active on the scene to find off market opportunities.

A State of the Art Estate
Campbell Stables, located south of the highway in Bridgehampton, is recognized as one of the finest luxury equestrian facilities. The property was developed on 20 acres of prime agricultural land by current owner and shoe mogul Bob Campbell of BBC International in 2015. “The design and development of this venue was fueled by a love for horses and the sport,” says Faye Weisberg, a seasoned broker with Saunders in Bridgehampton, who has the listing for $40 million. The stunning equestrian estate sits on 18 acres and is comprised of five structures that are configured around a central courtyard. The traditional façades have white clapboard with hunter green standing seam roofs and crimson red window muntins and mullions.

Guests arrive through a grand entry connected to several smaller intimate courtyards with brick pathways and native landscaping. The property includes a 15,000-square-foot indoor ring, three outdoor rings and 14 paddocks. The custom-made stables hold 27 stalls. Vaulted ceilings with exposed heavy timber beams are accented by the black iron work and the herringbone pattern brick inlays located in the central aisle.

For those who love equestrian events like the prestigious Hampton Classic—and wish to live a true Hamptons lifestyle—these properties embody what it means to love horses and the East End.

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Everyday Excitement https://equicapmag.com/wheels/?utm_source=rss&utm_medium=rss&utm_campaign=wheels Sat, 06 Jul 2019 19:36:45 +0000 https://equicapmag.com//?p=134

Classic Car Replicas.

In August of 2019, auction house RM Sotheby’s will roll out a classic 1962 Ferrari 250 GT SWB Berlinetta onto the sales blocks at its flagship three-day event, in Monterey, California, with early estimates already predicting the vehicle could fetch anywhere between $8,000,000 and $10,000,000. So coveted are Ferrari 250s of this era–from Berlinettas to Testa Rossas, California Spyders to GTOs–asking prices have continued to rise over recent years, and it seems like every few months a record is broken as fees climb higher and higher into the double-digit millions.

These enormous figures, however, come as no surprise to those in the classic car community, given the rarity of the remaining vehicles from Ferrari’s 1953 to 1964 series of 250s; their individual histories, which range from movie appearances to race wins; and, of course, the incomparable driving experiences they still offer even today.

Let’s take the 250 SWB Berlinetta–only 165 were ever produced from 1959 until 1962, and stories, no doubt, are stamped to each and every one of them. This model of 250 came with the esteemed 3.0 liter, V12 engine that was indicative of Ferrari’s racers at the time. SWB Berlinettas won the 1960, ’61 and ’62 Tour de France Automobile. Heavier steel bodies (around 80-something of them, for street use) and light-weight aluminum versions (for racing) made this the model of choice for 250 “customers [who] were able to win the race on Sunday and drive to the office on Monday, all in the same car,” Marcel Massini, a renowned Ferrari historian who advises the likes of Sotheby’s, told EQ.

But what if such a car can’t be driven to work on Monday by those who wish to do so some 60 years later? What if price points and availability hinder some from ever obtaining, or fear of damage freezes those who are already fortunate enough to own?

One such vehicle sitting in Manhattan Motorcars, on 11th Avenue in Midtown Manhattan, looks to offer an alternative.

Upon first glance, the gleaming black coupe looks just like any other pristine SWB Berlinetta from decades ago.

Ferrari badge:
check.

Iconic body shape:
check.

Gear stick, dial positions, steering wheel design:
check, check and, well, check.

Price: $1.39 million
Wait, what?

Yes, according to Mark Lyon, whose company GTO Engineering produced the car on show, this model is “nearly 100 percent the same” as the original, and at “one tenth of the price.”

The 250 GTO, as it is named, may have been inspired by 1950s and 60s Italian design, but it was actually constructed by the hands of Brits in 2018. Based in Reading, England, just west of London, GTO Engineering has focused on Ferrari servicing and restoration since it opened in 1994. As Ferrari’s classic models become ever older, parts wear out; replacements become scarce or non-existent. GTO Engineering then steps in to make the new ones themselves — which may mean building, say, a replacement engine from scratch for a customer who wants to take out a valuable original and protect it.

In 2008, however, the global financial crisis hit, impacting GTO Engineer’s forecasts for their traditional work. “I said to my staff, ‘This is going to be a quiet year this year — what do you say to building a whole car?,’” Lyon, whose company has 42 staff in its U.K. headquarters and an operation in Los Angeles, explained. “Everyone liked the idea. So, we started then with a couple of deposits from clients, and started making cars.”

What came next Lyon describes as “very advanced reverse engineering.” Knowing he and his staff had either made or owned all the parts to make up the likes of a short-wheel-base (SWB) Berlinetta, they set to work on making their own version of the car that was as close as possible in looks, performance and feel to the original. That process took around two years from design stage to the finished model, and, to date, the company has made some 28 vintage Ferraris, 22 of which are like the one in Manhattan Motorcars, Lyon said.

On average, three members of staff will now work on each ground-up creation, and the process now takes around 18 months for models of cars whose designs the company has worked on in the past. (There are future plans for a California Spyder.) And while Lyon admits that they will always have to source tires and carburetor that cannot be made in-house, thousands of pieces are individually crafted in Reading — even those that make up features that perhaps weren’t around in the ’50s and ’60s.

“We never try and pass one of our cars off as an original car,” Lyon said. “We’re making the perfect copy, but it is a copy.”

Air conditioning, for example, is one such request that GTO Engineering is often asked to add to their Ferraris, keeping it hidden to be true to the original design, while newer electrical parts also improve reliability. The 250 GTO commissioned by Manhattan Motorcars has an engine that is half a litre more powerful than the original.

GTO Engineering also ensures that every vehicle it builds has a unique I.D. number and paperwork that is tied to an original Ferrari —even if their starting point is what remains of a car that’s been burnt out or had numerous parts stolen off it and nothing more. “We’re not destroying any cars,” said Lyon, who added it’s preferable if the model whose I.D. they are working with is older but not essential. “We don’t need any parts; we’ve got all the parts…We like to have something physical if we can — so, a bit of chassis, or some parts, if possible. But we basically make the car.”

For that reason, Marcel Massini, the Ferrari expert, estimates that while there were only 165 SWB Berlinettas created from 1959 to 1962, as many as 300 or more additional versions with Ferrari I.D.s could have been built by companies similar to GTO Engineering, who operate in a market that includes those working on replica Jaguar E-Types and vintage Porsches.

This has split opinions in the car collecting world. Massini, a purist, has called the use of I.D. numbers tied to perhaps more mass-produced Ferraris “sacrilege” and says it’s a shame that “other Ferraris are being butchered and basically killed to use their identities or their remnants to build a 250 SWB replica.” Others see it as a cheaper alternative to have access to a design of Ferrari that otherwise remains out of reach — like a classic painting purchased for an exorbitant fee and then locked away in a private collection, and not shared with the public.

Miles Miller, the chief operating officer of Manhattan Motorcars, while sympathetic towards the views of Massini and others, said the focus should simply be on the craftsmanship itself. Miller was not intending to commission such a car when he visited GTO Engineering around two years ago, but having been impressed by the performance and build quality, he and his father, Brian, who owns the business, saw a car that they believe could offer a weekend drive for those who cannot get their hands on the original — or even a daily drive for someone who does not want to damage their own rare Berlinetta itself.

“There’s always going to be people who poo poo it a little bit because it’s not original and everything like that. It’s still a beautiful piece of engineering; it’s stunning to look at; it sounds great — so don’t over complicate it.”

Lyon, naturally, agrees. “There are some people who don’t like it, but most people say, ‘I can see why they’re doing that — that does make a lot of sense,” he said. “You don’t want to use something that’s very unique and irreplaceable; you want something you can use and have fun in. Not many people use the original cars anymore — which is very sad, but it’s true.” Lyon hopes to hear the sound and see the sight of a new GTO out and about soon.”

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Like a Good Neighbor, RPAPL § 881 is There https://equicapmag.com/like-a-good-neighbor-rpapl-%c2%a7-881-is-there/?utm_source=rss&utm_medium=rss&utm_campaign=like-a-good-neighbor-rpapl-%25c2%25a7-881-is-there Fri, 07 Jun 2019 23:17:59 +0000 https://equicapmag.com/?p=2096

Developer receives underpinning relief through court-ordered access license

WRITTEN BY: Michael A. Smith, Brendan Schmitt and Alexander Berger*

New York courts regularly grant construction access licenses to developers under § 881 of the State’s Real Property Actions and Proceedings Law (“RPAPL”), which provides statutory relief to compel the protection of a neighboring property whose owner fails or refuses to consent to such protection under the New York City Building Code (“BC”) § 3309. 

Those same courts, however, have been reluctant to do so when the RPAPL § 881 request is for permanent encroachments, such as underpinning. But one recent case in New York County Supreme Court, which involves an affordable housing developer’s attempt to underpin a neighboring property, should be noted because of its explicit rejection of what other courts typically view as controlling precedent.

Background
New York City development projects are often very close to one or more neighboring properties. When that happens, the Building Code requires protection for the adjoining building, which often means a developer needs access onto the adjoining property or over its airspace. For instance, a developer could need to install innocuous equipment to monitor for vibration or cracks; or the developer could need to install sheds or scaffolding, which are ubiquitous in New York City construction. 

Sometimes, a developer has to excavate deeper than the neighbor’s foundation, which could require access underneath the neighboring building to install permanent encroachments for support, such as underpinning. “Plan A” is to get consent directly from the neighbor, through a construction license agreement in which both parties negotiate the scope and terms of access that will be permitted. But sometimes private negotiations break down, or a neighbor refuses to negotiate at all. When that happens, developers often move to “Plan B” — seeking a court-ordered access license through RPAPL § 881.

RPAPL § 881 Cases and Permanent Encroachments
Courts hearing RPAPL § 881 cases strive to apply a “reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted.”[1] However, for underpinning and other permanent encroachments, New York courts typically depart from this case-by-case, fact-specific approach. Typically, New York courts do not allow permanent encroachments on neighboring properties through RPAPL § 881, and when they have done so, such licenses have consistently been overturned when heard on appeal.

The relationship between the applicable legal authorities on underpinning is frustrating for developers. BC § 3309 is the Building Code section governing protection of adjoining properties during construction. BC § 3309.5 clearly requires underpinning beneath adjoining properties for certain development projects, and it even envisions the consequence if the neighbor refuses entry, namely, the underpinning responsibility “shall devolve” to that neighbor. While RPAPL § 881 is the developer’s avenue for statutory relief when a neighbor blocks a developer from protecting adjoining property as required by BC § 3309, traditionally, such relief has not extended to permanent encroachments such as underpinning (and, therefore, BC § 3309.5).

This track record of RPAPL § 881 jurisprudence can seep its way into private negotiations. Sometimes, a developer may redesign its project to avoid permanent encroachments. Of course, such a redesign may not be ideal. This could, for example, result in a loss of valuable square footage that could not otherwise be developed. Moreover, in situations where underpinning is the fastest, cheapest or safest way of supporting excavation, the developer might be faced with a longer project timeline, additional expense and new safety concerns.

The Decision
In the case in question[2], the petitioner was an affordable housing developer that contended that BC § 3309.5 required it to support a neighboring building by underpinning it. After the neighbor refused entry, the developer sought a RPAPL § 881 court-ordered license, which was granted by the court. The court reasoned that permanent encroachments are permissible under RPAPL § 881 when they are “virtually unavoidable,” meaning that “no feasible alternatives” exist. Here, various factors weighed on the court.

The developer would be required to redesign the project at significant expense if underpinning could not be performed, and valuable basement space would be lost. Underpinning was necessary to prevent the adjoining building from collapsing, and the New York City Department of Buildings (“DOB”) had approved the petitioners’ underpinning plans, following two years of review.

While the neighbor proposed alternatives to underpinning, including sheeting and bracing support, the court did not consider these to be viable options because they increased the risk of structural damage to the adjacent building.

There was a strong public interest component in that the project was for homeless housing.

The court further explained that it “does not read the case law to preclude a license for permanent encroachments altogether,” because RPAPL § 881 permits it to grant licenses “as justice requires.” In reconciling the applicable legal authorities, the court determined that “the DOB’s regulations… when read together, clearly anticipate a legal proceeding under RPAPL § 881 to obtain a license for an underpinning. Furthermore, according to the court, “[i]f an underpinning was never allowable, it would have been unnecessary for [previous] decisions to discuss how petitioners failed to carry their burden” with respect to licenses permitting underpinning.

Conclusion
While noteworthy, it is unclear if this new case reflects, and/or will create, any disruption of RPAPL § 881 jurisprudence on permanent encroachments. Putting aside whether other courts will follow suit, this case itself may not withstand scrutiny, if appealed.

If, however, other courts do follow this case, perhaps the “virtually unavoidable” test for permanent encroachments seeps into private negotiations of construction license agreements with adjoining properties throughout New York City.

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