RISK MANAGEMENT STRATEGIES FOR APARTMENT-TO-CONDO CONVERSIONS

Transcription

1 Workshop W4 Wednesday, November 20 9:00 10:15 a.m. and 10:45 a.m. noon RISK MANAGEMENT STRATEGIES FOR APARTMENT-TO-CONDO CONVERSIONS Presented by Workshop W4 Chad M. Hall Senior Vice President, Construction Practice R-T Specialty Insurance Services, LLC Sue Mitro Vice President, Risk Management Wood Partners Jeremiah Welch Partner Saxe Doernberger & Vita, P.C. As the economy struggled, demand for apartments has been on the upswing and consequently apartment construction has also been on the rise. As the economy improves, history shows that many apartments will be converted to condominiums. Contractors and developers involved in these projects have growing concerns about construction defect exposures arising out of apartmentto-condo conversions. This program will discuss the conversion dilemma, the issues each stakeholder faces, strategies for handling conversion risks contractually, and insurance solutions for covering conversion risks. To print on both sides of the page, set your printer for duplex printing. Copyright 2013 International Risk Management Institute, Inc. 1

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4 Chad M. Hall Senior Vice President, Construction Practice R-T Specialty Insurance Services, LLC Mr. Hall is Senior Vice President of R-T Specialty Insurance Services, a casualty wholesaler focusing exclusively on the construction industry. He has assisted in placing thousands of project policies and hundreds of millions in premiums over his 10-plus years in the insurance industry. In addition to insurance placement, Mr. Hall specializes in creating new products, program design, and feasibility/pro forma analysis during the sales process. Mr. Hall started his career in the construction industry in 1997, working in trades while attending business school at Central Michigan University. He began his insurance career in 2003 at National City Insurance Group in Detroit, Michigan, as a producer selling insurance solutions to middle market contractors. Later he moved to Chicago to attend graduate school at Northwestern University, earning a master s degree in Construction Management while working as an underwriter with AIG s Construction Risk Management division. Following graduate school, he moved back to the retail brokerage side with Allied North America (which later became Aon), selling OCIP, CCIP, and rolling CIP concepts. Mr. Hall joined R-T Specialty Insurance Services when it formed in Workshop W4 Sue Mitro Vice President, Risk Management Wood Partners Ms. Mitro is the Vice President of Risk Management for Wood Partners, a national developer of multifamily projects that include mixed-use, garden-style, high-rise, and high-density communities. Ms. Mitro is responsible for all aspects of corporate risk management and insurance, including development operations, general contracting operations, projects under construction, operating communities, the Asset Management Services group, the Legacy Property group, and the Property Management division. Prior to joining Wood Partners, Ms. Mitro was the Director of Risk Management for two other multifamily developer/contractors. Before that, she spent over 25 years in risk management for The Hillman Company, a large holding and investment company. An active member of the Risk & Insurance Management Society (RIMS) on both a local and national level, Ms. Mitro has been a speaker at many industry-related events. She was an adjunct professor of risk management for 4 years and served as a CRM and ARM course instructor as well. Currently, Ms. Mitro is deeply involved in the Risk Management Subcommittee for National Multi-Housing Council (NMHC). She is a graduate of the University of Pittsburgh. 3

5 Jeremiah Welch, J.D. Partner Saxe Doernberger & Vita, P.C. Mr. Welch focuses his practice on corporate risk transfer and insurance recovery, advising corporate counsel, risk managers, and insurance brokers on risk transfer program design and ways to improve existing programs, including corporate insurance procurement and contractual risk transfer through indemnity, insurance, and other means. Mr. Welch also maintains an active litigation practice, representing a variety of clients in insurance recovery matters throughout the country. Prior to joining Saxe Doernberger & Vita, Mr. Welch was a partner in a prominent defense firm in Los Angeles, California, where he represented various professional and corporate clients through all phases of litigation, including jury trial and arbitration. Mr. Welch frequently presents on a variety of risk transfer topics for clients and at national industry conferences and is the author of numerous publications. He received his law degree from Pepperdine University and his bachelor of arts degree from Rhode Island. Mr. Welch is a U.S. Army veteran. 4

6 Risk Management Strategies for Apartment to Condo Conversion Presented By: Jeremiah M. Welch, Esq. Partner Saxe Doernberger & Vita, P.C. Workshop W4 Chad M. Hall, MPM Sr. Vice President, Construction Practice R-T Specialty Insurance Services, LLC Sue Mitro, CPCU, ARM Vice President, Risk Management Wood Partners What is an Apartment to Condo Conversion? Apartment Construction Rental Operation Pre- Conversion Renovation Conversion 2 5

7 Most Common Conversion Scenarios 1. Owner/Developer builds an apartment then decides to convert to condo at a later date after renting/leasing units. 2. Owner/Developer builds an apartment then sells to a subsequent owner that then converts to condo. 3. Owner/Developer buys an asset that is distressed bank owned and then converts to condo. 4. Owner/Developer buys an asset that is more than 10 yrs. old then converts. 3 6

8 Scenario 1 Owner/Developer builds an apartment then decides to convert to condo at a later date after renting/leasing units Does owner have residential conversion coverage? Does GC? Should I buy a wrap-up or rely on the contractor s insurance? I have heard of issues with exclusion J(2) on the policy if I held the property for rental? Should I give the contractor reverse indemnification/anti-flip language in the contract? What about deed restrictions? Workshop W4 5 7

9 8 8 Catlin Form CAGL

10 Workshop W4 Scenario 2 Owner/Developer builds an apartment, then sells to a subsequent owner that converts to a condo Do I need to buy condo coverage as the seller to protect myself against the condo conversion by others? What options do I have? Require the buyer to buy condo coverage for me? And GC? If I m the buyer how do I address prior work performed by others that I did not contract with? Who should indemnify whom in this scenario? As the buyer what recourse do I have against the seller for defects discovered before conversion? 10 9

11 Scenario 3 Owner/Developer buys a distressed bank owned asset and converts to condo Past developer is gone. Is there any type of risk transfer back to them? Who is left holding the risk if I buy this from the bank? What about the original contactors? Can we push defect claims back to them? Can we go after the original developer s insurance if they are bankrupt or dissolved? What liability does the bank or receiver have? 12 10

12 Workshop W4 Scenario 4 New Owner Converts to Condos (Statute Has Run on Original Owner/Builder) Statute of repose has run on original contractors and old owner/developer is liability totally gone on any existing defects? As the buyer, can I get any protection in the sale contract from a seller when the statute has run its course? What do we do about the defects then? Does the statute re-toll on the building when we sell the units if we don t make any structural improvements but just cosmetic? Our engineers would have certified that structure was sound so if an undiscovered defect arises, do we have a potential E&O on our hands? Does the statute re-toll when we fix the defects we discover in our property 15 conditions assessments? 11

13 Jeremiah M. Welch, Esq. Partner Saxe Doernberger & Vita, P.C Chad Hall, MPM Senior Vice President, Construction Practice R-T Specialty Insurance Services, LLC Sue Mitro, CPCU, ARM Vice President, Risk Management Wood Partners