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Darius Tencza and Marina Tencza v. Tag Court Square

August 16, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiffs Darius and Marina Tencza purchased a condominium apartment in Queens, New York from defendant Tag Court Square, LLC ("TCS"). They brought this action to enforce their right to revoke the purchase pursuant to the Interstate Land Sales Full Disclosure Act ("ILSFDA"). TCS has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint as time-barred and for failure to state a claim for which relief can be granted. For the reasons set forth below, TCS's motion is DENIED.


Defendant TCS is the sponsor of the Arris Lofts Condominium ("Arris Lofts") located in the Long Island City neighborhood of Queens, New York. In May 2007, Plaintiffs agreed to purchase Unit 800 at Arris Lofts (the "Unit"). The exact timing of the agreement is the subject of some dispute. The complaint incorporates by reference the Purchase and Sale Agreement (the "Agreement") for the Unit. (See Compl. ¶ 13; Ex. A.). The signature page of the Agreement, signed by each Plaintiff as well as TCS's agent, is dated May 8, 2007 and provides that "the parties have executed the Agreement as of" that date. Accordingly, Plaintiffs allege that they "signed the Purchase Agreement" on that date. (Compl. ¶ 13.) However, Schedule B to the Agreement, entitled "Disclosure of Information on Lead-Based Paint and/or Lead-Based Hazards," is dated May 1, 2007, and a Rider to the Agreement related to the purchase of a storage bin at the condominium which is signed by each Plaintiff, though not by TCS, is undated. The Rider provides that the date is "[t]o be inserted by Sponsor after countersignature by Sponsor."*fn1

After tendering the balance of the purchase price, Plaintiffs closed on the Unit on May 19, 2008. (See Compl. ¶ 15.) Plaintiffs allege that TCS never provided them with a property report and never filed a statement of record with the United States Department of Housing and Urban Development ("HUD") even though the ILSFDA required TCS to do both. (See id. ¶¶ 24, 27.) Based on these alleged violations, Plaintiffs, through counsel, invoked their right to revoke the Agreement by letter to TCS dated April 23, 2009. (See id. ¶ 30.) TCS has not honored this request. On May 6, 2010, Plaintiffs filed the instant suit to enforce their revocation. On September 15, 2010, TCS moved [8] to dismiss the action as time-barred and for failure to state a claim for which relief can be granted.


"Courts ruling on motions to dismiss must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Dickerson v. Mut. of Am., 703 F. Supp. 2d 283, 290 (S.D.N.Y. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions" and courts are "not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. Rather, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" Id. (quoting Twombly, 550 U.S. at 557).



Congress enacted the ILSFDA in 1968. The statute "is designed to prevent false and deceptive practices in the sale of unimproved tracts of land by requiring developers to disclose information needed by potential buyers." Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776, 778 (1976). To that end, the statute imposes various requirements on parties who sell land via instrumentalities of interstate commerce.

"Congress, in passing the statute, desired to protect purchasers from unscrupulous sales of undeveloped home sites, frequently involving out-of-state sales of land purportedly suitable for development but actually under water or useful only for grazing." Beauford v. Helmsley, 740 F. Supp. 201, 209 (S.D.N.Y. 1990) (quoting Winter v. Hollingsworth Properties, Inc., 777 F.2d 1444, 1447 (11th Cir. 1985). "The most uncertain and risky sales, in terms of future development and use, were of large tracts of subdivided, undeveloped land. Some such land was [un]inhabitable, and other such land, though possibly habitable, would require an enormous investment by the developer and local government to make it so." Bodansky v. Fifth on the Park Condo, LLC, 635 F.3d 75, 80 (2d Cir. 2011) (internal citation omitted).

However, the statute refers generally to "the sale or lease of any lot." See 15 U.S.C. § 1703(a)(1); see also id. § 1703(a)(2) (referring to "the sale or lease, or offer to sell or lease, any lot"). HUD has interpreted the term "lot" to refer to condominium units. See 61 Fed.Reg. 13,596 (Mar. 27, 1996) ("Lot means any portion, piece, division, unit or undivided interest in land if such interest includes the right to exclusive use of a specific portion of the land or unit. This applies to the sale of a condominium . . . as well as a traditional lot.").And numerous courts in this district have endorsed that interpretation. See Bacolitsas v. 86th & 3rd Owner, LLC, No. 09 Civ. 7158,2010 WL 3734088, at *4 (S.D.N.Y. Sept. 21, 2010)("Though the text of ILSA employs the term 'lots' throughout, the statute also governs condominium units.") (internal citation omitted); Cruz v. Leviev Fulton Club, LLC, 711 F. Supp. 2d 329, 331 (S.D.N.Y. 2010)

("While the ILSA's text refers to the sale of 'lots,' its protections apply to the sale of condominiums as well.") (internal citations omitted); Bodansky v. Fifth on the Park Condo, LLC, 732 F. Supp. 2d 281, 285 n.6 (S.D.N.Y. 2010) ("HUD Guidelines make it clear, and other courts have found, that a 'lot' may also mean a condominium unit."), vacated on other grounds by 635 F.3d 75; Beauford, 740 F. Supp. at 209-10 (citing Winter, 777 F.2d at 1448 ("HUD's inclusion of condominiums within the ILSFDA is a reasonable interpretation of Congress' original intent in enacting the statute and the only defensible interpretation. . . .")). Accordingly, with certain exceptions discussed below, the requirements of the ILSFDA generally apply to condominium units such as the Unit Plaintiffs purchased.

The two disclosure requirements TCS allegedly violated appear in Section 1703(a)(1), which provides in relevant part:

It shall be unlawful for any developer or agent, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce, or of the mails--(1) with respect to the sale or lease of any lot not exempt under section 1702 of this title--

(A) to sell or lease any lot unless a statement of record with respect to such lot is in effect in accordance with section 1706 of this title;

(B) to sell or lease any lot unless a printed property report, meeting the requirements of section 1707 of this title, has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser or lessee;

15 U.S.C. § 1703(a)(1)(A)-(B). Under Section 1706, a statement of record is effective when it is filed with the Secretary of HUD. See 15 U.S.C. § 1706. Thus, absent an exception, Section 1703 makes it unlawful to sell a condominium unit either (a) pursuant to a plan that has not been filed with HUD; or (b) where a property report has not been provided to the purchaser before he or she has signed an agreement.

With respect to their Unit, Plaintiffs allege that TCS provided neither required report. Accordingly, Plaintiffs have invoked their right to revoke the sale pursuant to Section 1703(c) which provides:

In the case of any contract or agreement for the sale or lease of a lot for which a property report is required by this chapter and the property report has not been given to the purchaser or lessee in advance of his or her signing such contract or agreement, such contract or agreement may be revoked at the option of the purchaser or lessee within two years ...

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