Rental Property Investor · San Diego, CA · Member since 2016 · 12 posts · 3 votes
Recently a few business partners and I invested in a 16 unit apartment complex in Phoenix, Arizona. We were given rent roll for 4 months prior to purchase that showed 15/16 units filled with paying tenants. The P&L statement showed cashflow positive, and aligned with the rent roll. We were also provided with copies of all the current leases.
We had an inspector we had never worked with look at the property, and he came back with only minor necessary repairs, so we moved forward with the purchase of the complex. Following purchase, we quickly found that only 10/16 units were filled, and only 6/16 units were actually paying rent.
Units were in disastrous condition, and since purchased, tens of thousands of dollars has been invested in repairs, evictions, and filling the empty units. Our inspector clearly didn't do thorough work, and the rent rolls provided by the seller were fraudulent. We are considering taking legal action against the seller, and possibly the property inspector. What is the likelihood of recovering our losses? What is the effort involved in this type of litigation? Any advice is much appreciated.
Folks,
Let's try and help Daniel instead of criticize.
Daniel,
I'm assuming you have passed your inspection time clause? If not - cancel the sale due to failure of passing inspection.
Unfortunately for you there is no "cooling off" period for real estate except for time shares. (Your chance to rescind your offer is based on your conditions).
what evidence were you provided that the rent roll was what the seller made it out to be?
I'd gather everything you were given and present it to an attorney.
Why did you not inspect the property personally? For the due diligence, why didn't you ask for bank statements to confirm that rent was being paid as stated? The rent roll tells you nothing concrete.
Do you have anything in your purchase agreement about fraudulent documents?
Was this property local? Did anyone on your team inspect it? Licensed inspectors, from my experience, detail every tiny problem. They might have E&O insurance. As to rent rolls being provided, etc, the safest way to verify income is the sellers IRS tax return (you only need the portion relating to the operation of that particular property).
Rent rolls by themselves mean nothing without actual bank/tax statements to support them. You say your inspector "looked" at property. A 16-unit apartment complex needs a lot more than just a "look" and a thorough inspection should have resulted in more than just a few minor repairs. Your due diligence is full of red flags. It is a learning experience, now its time to analyze what you have and determine your next course of action. Personally, I would stick to trying to rehab the 16-unit to a viable rental property, in hopes of taking your losses now, with the intent to recoup them later. Litigation has its own risk, costly, and time consuming. Ultimately, you failed to complete your due diligence at many levels, and that may not translate to seller liability.
Inspectors liability is typically limited to the cost of the inspection, and to recover that you have to show gross negligence which is quite hard to do.
Were you using an agent/broker? Sounds like probably not as that is a safeguard to have in place. Was this property listed by an agent? If they allowed fraudulent disclosures then a complaint to the real estate commission is in order.
Folks,
Let's try and help Daniel instead of criticize.
Daniel,
I'm assuming you have passed your inspection time clause? If not - cancel the sale due to failure of passing inspection.
Unfortunately for you there is no "cooling off" period for real estate except for time shares. (Your chance to rescind your offer is based on your conditions).
what evidence were you provided that the rent roll was what the seller made it out to be?
I'd gather everything you were given and present it to an attorney.
In your opinion, the agent should verify representations by a seller?
Yes. Agent wouldn't be able to confirm everything in a profit and lost the statement, but would easily be aware of 6 units vacant versus 1 claimed. I have little doubt that in the states I'm licensed in the real estate commission would take action against me for my seller misrepresenting current vacancies.
Keep in mind that a rent roll is just a moment in time. We do not have enough information here as to the lag between the rent roll and the closing date. While an agent should attempt to verify the information provided, he/she would not be expected to have an up to the minute knowledge of an apartment building
This is another example of the need to put your eyes on every property you purchase. I do not understand why someone would thousands or even millions on an investment but will not spend a day and a few hundred dollars on airfare
I think another big mistake by purchaser was not to get income tax statements for this property for the last 2 or more years. If you make an offer based on their tax return and they claimed higher expenses and lower profits, that would be to a buyers advantage.
Here's my take as a lawyer. I don't think anyone can really intelligently offer you advice about your situation because we don't have the contract or the closing docs. Moreover, we are not familiar with AZ law (or whichever state's law would govern). We don't know anything about reps, warranties and what not. You really need to consult a lawyer (most likely in AZ), who will review your file and advise you about your rights including issues with collectability.
I am one of the investors that was a part of this deal so I will chime in. We are out of state investors from CA so did not personally visit the complex and do due diligence. The past four deals we did we worked with honest sellers and hadn't been burned so we weren't cautious enough.
We had used a residential inspector on our past deals, he wanted $3,500 to do the inspection but the seller's agent said he had a good guy that would charge us less that focuses on apartment complexes. His price was only $750 so we were concerned about a quality inspection but were assured he does a great job. We were sent a sample of the report that we would receive and it was on par with what we had gotten from prior inspections. Their website (www.targetbuildinginspections.com/about-target.html) and online reviews also checked out.
Our group relies on our property manager to be our boots on the ground and he was supposed to attend the inspection but his father passed away that day, so he ended up running an hour late to the appointment. The strange thing was the inspector had FINISHED inspecting everything in one hour flat, which seemed incredibly fast. We were told it is because he doesn't check for minutia like a "home inspector" would, and this inspector had inspected the same property 3 years ago for the prior owner. He is definitely licensed but unsure on insurance to be honest. Just checked the inspection contract and don't see anything called out.
@Russell Brazil Yes we were using a broker and the property was listed by an agent as well. The inspection agreement does say:
"7. In the event Client believes Target failed to fully or adequately inspect or report any specific condition at the Property, Client will notify Target in writing by certified mail within five (5) days of Client's discovery of the alleged failure and will give Target a reasonable opportunity , which shall not be less than five (5) days to re-inspect and modify the PCR if, as determined by Target, a re-inspection and report modifications is necessary. 8. Client’s failure to comply with Paragraphs 6 and 7 as to any condition shall constitute a waiver and bar of any and all claims against Target for failure to fully or adequately inspect or report the Property condition."
This property was purchased back in April and it has taken us months to realize the true degree to which we were lied to, so we are well beyond the inspection period.
Wow. This is a tough lesson to learn. I'm guessing all of your partners are busy with other daily arrangements? It might be prudent on future deals to take turns with one partner attending the preinspection of the property.
As far as article 7, they can put whatever they want to in contracts like that. In fact, they put lines just like that into the report to discourage people in your position from proceeding. One hour to inspect a large multi doesn't seem acceptable.
That company has a long list of commercial clients - clients I'm sure would like to be aware of the inspecting companies poor practices.
You've probably realized this now - accepting a referral on a critical item with help of the opposing party in a transaction can be hazardous. I'd consider calling the agents broker and telling him about this conflict and your concern about being set up. Ask him what he's going to do about it and stop and listen. I enjoy using awkward silence to put pressure on people in situations like this.
I hope you make some progress on this. It could've been even worse - try and use it as experience on all future deals.
Based on the comments from the original poster & the other financial partner, it is clear that they (themselves) realize that there were huge holes on their own part from a due diligence perspective. Said another way, if the due diligence were more thorough, they would likely have found out many of the said issues. I don't think that is even question.
Being out of state, relying on a third-party management company, trying to save money on an inspection are simply not acceptable excuses, unfortunately!
Without knowing the exact contractual conditions, it must be recognized that they are fighting an uphill battle.
They should now focus on getting all of the repairs done, getting the units re-rented and move on.
That is a bitter pill, but unfortunately, it is not an infrequent occurrence.
Trying to sue would probably be throwing away good money after bad. Too many things you guys should've done or caught with your own eyes if you were there. Hopefully you got it at a good enough price that it will all come out in the wash at the end. But sure, try and rattle some cages, maybe someone might come across with some kind of offering, but don't count on it.
One time I was buying a big old hotel/ rooming house out of state. I'm a builder contractor and know what to look for, but just wanted a pro's write up to use as a bargaining chip. I of course am there with the inspector and the agent during the inspection and the place is a real dog, lot's of issues. The inspector I hired was the president of his inspector guild (I wanted the best). After the inspection was complete, the guy tells me, " look I don't feel comfortable writing this report, I'm sorry here's your check back" and he handed me the camera card with all the pics. The guy was smart enough to know that he couldn't write a report complete enough to hang his hat on that wouldn't come back and hurt him and his reputation. This is what that inspector should've done in your case.
@Ross Wilson good commercial broker will have a separate addendum or custom contract with definitive reps and warranties.. probably an expensive lesson this one unless you want to sue for recission or money damages ( expensive) and does the seller have anything.
going forward have your Attorney prep a reps and warrenty addendi you use on all contacts.. then of course do as others have stated get actual tax returns and supporting bank statements.
The broker made a mistake of referring just one party for the inspection (minimum of 3 should've been the case). Being out of state it's simply unacceptable that not a single investor looked at the property, you can't expect every single seller to be honest - that's just not how things work. Due diligence is the investor's responsibility so if Schedule C/E were not requested and reviewed that's a big mistake.
In my humble opinion this is the reason that it is incredibly important to hire an Attorney and find a Good Real Estate Agent to represent you when you begin searching for property. Having an attorney draft a rock solid purchase agreement may be expensive up front, but it can save you thousands of dollars in the long run. Additionally a good REALTOR will do everything they can to assist you in your due diligence and help protect you on the front end so that you hopefully don't end up in a situation like this. Not to mention many times it doesn't cost a Buyer anything upfront to hire an agent to represent them.
However Hindsight is always 20/20, at this point it would probably be best to consult an attorney to see what your recourse is. It may be expensive, but in my experience a good attorney tends to pay for themselves many times over.
1 hour to complete the building is totally not acceptable.
My wife had a client looking at an 8 unit building, 2 inspectors took 4 hours to complete the building. Her buyer was out of state but she attends all her buyers inspections.