Good Property Opportunities on Martha's Vineyard

BANK OWNED PROPERTY (REO): This property was officially listed for resale by the lender on January 26, 2008 at an asking price of $564,900. The price was just reduced to $555,000, and the current town assessment is $697,100. The fact that the price has been reduced is standard procedure for a lender after 30 days without substantial interest in the property. This is a good sign for prospective buyers. The property is located in a nice neighborhood equidistant to all down-Island towns and is a lot of house for the money.

Click here to view property > Edgartown - 6 Mockingbird Drive

Everything is Coming Up Roses, Or Are They Tea Bags?

Rick Santelli was reporting from the pit at the Chicago stock exchange the other day and got everyone stirred up with his suggestion of a Chicago Tea Party . I thought it was marvelous and right on.

Here we are now with a $787 billion stimulus package that includes anemic elements like an $8000.00 tax credit for taxpayers buying a primary residence between Jan. 1 and Dec. 1, 2009. Single taxpayers making less than $75,000 are eligible. That tax credit doubles for married couples. Think about it, an 8k credit is just a drop in the bucket for a buyer in areas like Martha’s Vineyard, and no not everyone who lives here is rich. It’s just not enough. And what about the $75 billion mortgage relief plan the President announced. It’s not right. The Wall Street Journal says, "By investing in failure, the Administration will also prolong the housing downturn and make financing a home purchase more difficult for future borrowers." The New York Times says it is "a good start, but given the dire state of the economy, we fear it still may not be enough."

But what is enough and actually too much is the idea that people who did nothing wrong, the 92 percentile, are being asked to help the 8% that either had no business getting a loan in the first place or defrauded the banks intentionally out of sheer avarice. It’s the hard working people who are continuing to pay their bills even though they are suffering like everyone else today; they are really going to suffer.

Here’s a quick story I heard yesterday from a broker in Florida about one of those people you will be suffering for. This ‘investor’ accumulated no less than 20 properties through no-money down financing during the high time of the market. They did not and have not paid one cent toward an equity share on those properties; they had every intention of not owning the properties long term. The lenders began the foreclosure process about three years ago, but it takes time. In the meantime, this person is consistently making about $20,000 a month in rental income. There are hundreds of scenarios like this one. Why should we suffer for this kind of behavior? They should lose everything and go to jail. But if they go to jail, shouldn’t the enablers go with them? Yes, and that is why nothing will happen to them.

If you are wondering why the foreclosure machine is moving so slowly, let me give you a brief idea by way of another true story. This person is a first time home buyer who will most likely lose their home when their Alt-A loan resets. Mind you this is also in one of the areas where values have dropped by 50%. This person went through foreclosure prevention counseling and as instructed began the bureaucratic procedure with the lender for a loan modification. They spoke to a loss mitigation representative and complied with the instructions they were given. They supplied all the necessary documentation, both on line and via certified mail. They had the person’s name and extension number, but when they called to get a progress report after about two weeks, that person did not exist and both their cyber and paper trail no longer existed. They tried again filling out all the same information, etc. Again after a couple of weeks they contacted the LM department and that person did not exist. However, somehow they were finally able to track down the person that helped them. The representative told them, “You can jump up and down, get nasty and impatient but it will not do you any good. I have over 100 case files on my desk and you are just one of them in the pile. You’ll hear from us when we get to your case.” End of discussion. That’s just one person who has to deal with this enormous mess the government wants everyone to be responsible for.

Bringing it back home to the Cape and Martha’s Vineyard, here in Massachusetts the Warren Group reported the number of homes on Cape Cod that were actually foreclosed on last month was down 8.9 percent. This number is compared to January 2008. In exact numbers, there were 41 foreclosure deeds filed in January 2009 compared to 45 last year. In Dukes County, which is Martha’s Vineyard, the number of foreclosure deeds filed fell to 9 last month compared to 13 in January 2008. That is a difference of 30.8 percent. The experts are not sure what is causing this reduction in foreclosures, but it is a good sign as are the more realistic price reductions posted by the Martha’s Vineyard Information Network database. There are 467 single family homes currently on the market with a total inventory of 680 properties in all classifications. There are 72 single family homes that have been removed from the market since the first of the year. I can assure you everything is for sale, so if you want one of those properties just ask.

Good Property Opportunities on Martha's Vineyard

SHORT SALE: Located close to the hospital and 5 minutes from either Vineyard Haven or Oak Bluffs Harbor, this 2100 sf colonial style 3 bedroom 2.5 bath home on a quarter acre lot is being offered at the distress price of $450,000. The assessed value for 2009 is $576, 700 and it was purchased in 2006 for $612,000. Please note that this property may very well sell for more than the asking price and offer acceptance is subject to approval by the lender.

Click here to view property > Oak Bluffs - 3 Linton Avenue

Good Property Opportunities on Martha's Vineyard

This nicely constructed spec house was just completed. It started out priced at $750,000, but the price was just reduced to $599,000. This puts it at a number for which you would not be able to reproduce this new home. The lot alone is assessed at 258K.

Click here to view property > Oak Bluffs - 10 Eastville Avenue

Agency Disclosure Follow-up for Buyers Only on Martha’s Vineyard

In my recent Blog titled “For Buyers Only on Martha’s Vineyard” I spoke about Agency Disclosure. I want to revisit the subject and add some statistical numbers tabulated by the National Association of REALTORS® (NAR).

Making the decision to be an Exclusive Buyer Agent is one that many real estate practitioners feel limits their potential for maximum income, because you can only walk on one side of the street --- the BUYER’s side. There is no double dipping or switching hats to suit the occasion. Exclusive Buyer Agents have to have a passion for protecting the buying public.

According to a recent essay published in NAEBAhood News written by John Sullivan of Buyer’s Edge in Bethesda, MD, “The abrogation of the common law of agency promulgated by NAR and instituted individually by state legislatures throughout the country … resulted in eliminating the fiduciary duties of obedience, loyalty, confidentiality, and reasonable care.” On my website, I painstakingly put together information outlining the differences and explaining what are the duties of a Fiduciary to a Principal/Client?

Sadly, I have personally witnessed buyer confusion as a result of the foreclosures we are experiencing here on Martha’s Vineyard. A distressed home owner told me the other day that he blamed his agent and the lender for giving him a loan they had no business approving. He will most likely lose his home because he will not be allowed to work it out since he still has no documentation to verify his income. Lenders have much stricter requirements today, as they should have had all along, and those requirements seem to be changing on a daily basis. Sure, the buyer should have known better (caveat emptor), but when he had three so-called professionals who he believed were on his side, he trusted that he was doing the right thing. In most cases, the real estate agents, mortgage brokers and even the attorneys that participated in the purchase sale transactions had no compunction about what they were doing, even though in their hearts they knew it was unlikely the buyer could fulfill their obligation according to the terms of the loan(s).

Much of the confusion comes from the fact that consumers are not informed of the real estate agent’s role in the transaction. According to NAR’s own study, only 30% of homebuyers were presented with the Mandatory Agency Disclosure Form at the first face-to-face meeting to discuss a specific property. Only 28% received the disclosure form when the purchase contract was written, and 22% never received it at all. 20% of the homebuyers could not even remember a discussion about the fiduciary responsibility of the agent or the options available to them. First time homebuyers were the most neglected with only 23% receiving the agency disclosure at the first meeting to discuss property. Those numbers are pathetic. No wonder consumers don’t trust real estate agents.

Massachusetts implemented their Mandatory Agency Disclosure in 2005, but I believe the state has done very little to enforce the law or properly educate consumers, or practitioners.

NAR’s only option for what they call Exclusive Buyer Agency provides a mechanism stated as “with consent to dual agency”. To me that is an oxymoron and the word “Exclusive” should be removed from the NAR Right To Represent Buyer Agreement. Here is the wording some brokers are using. See if it makes you, as a consumer, comfortable and confident that you will receive the maximum care and guidance you want.

Consent to Dual Agency. The BUYER understands that BROKER also represents seller and that if BROKER shows BUYER a property listed by a seller-client a “dual agency” will be created. The BROKER may act as a dual agent who represents both prospective BUYER and SELLER with their informed written consent. A dual agent is authorized to assist the BUYER and SELLER in a transaction, but shall be neutral with regard to any conflicting interest of the BUYER and SELLER. Consequently, a dual agent will not have the ability to satisfy fully the duties of loyalty, full disclosure, reasonable care and obedience to lawful instruction, but shall still owe the duty of confidentiality of material information and the duty to account for funds. The BUYER understands that material information received from either client that is confidential may not be disclosed by a dual agent, except: (1) if disclosure is expressly authorized; (2) if such disclosure is required by law; (3) if such disclosure is intended to prevent illegal conduct; or (4) if such disclosure is necessary to prosecute a claim against a person represented or to defend a claim against the broker or salesperson. This duty of confidentiality shall continue after termination of the brokerage relationship. By signing the agreement, BUYER authorizes BROKER to act as a dual agent and consents to dual agency. If dual agency occurs in a transaction, a notice of dual agency will be given.

Exclusive Buyer Agency is a commitment members of the National Association of Exclusive Buyer Agents (NAEBA) make to consumers. This is a black and white cut and dry commitment; there are no gray areas and it takes passion and dedication to subscribe to this business model. For 100% representation 100% of the time, insist upon working with an Exclusive Buyer Agent when you are purchasing real estate of any kind.

Good Property Opportunities on Martha's Vineyard

There are two properties that I want to bring to your attention. I know they are on opposite ends of the price spectrum but they are both worthy of comment.

The first one is a simple extended Cape that has just been reduced in price to $495,000. The 2009 assessment is 533K.

Click here to view property > Vineyard Haven - 81 Hazelwood Avenue

The second property is an architect designed contemporary in the West Chop area. This is in my opinion a beautifully designed home with a very good address.

Click here to view property > Vineyard Haven - 97 Golf Club Road

For Buyers Only on Martha’s Vineyard

In an article titled ‘AGENCY, Know Your Facts’ published in the January 2009 Newsletter by the Cape Cod & Islands Association of Realtors®, Inc the following points were made under the topic heading “ The Law”. There were many other facts discussed, but I thought these two would be of particular interest to consumers.

• “Designated Agency is a process where the broker of record, with the consent of the consumer, designates one or more agents to represent a Seller and designates one or more agents to represent a Buyer in the same transaction. The relationship with the consumer begins and ends with the designated agent and does not extend to the other agents in the office. In a designated agency firm, the broker is a dual agent and retains all legal and ethical responsibility for the transaction.”

Although there is a definition of Designated Agency on the Mandatory Disclosure form, I do not discuss it as part of my consumer education process because traditional real estate agencies on Martha’s Vineyard only practice Disclosed Dual Agency. The concept of Dual Agency in itself is difficult enough for consumers to wrap their minds around. I have a lot of information on agency representation on my website FOR BUYERS ONLY.

The main reason Designated Agency is not a consumer service offered on Martha’s Vineyard is because the offices are not large enough, and because the principal brokers realize this is much to frothy a concept for them to handle comfortably. But come on folks, read the definition again and see if it does not totally blow your mind. We all know that business is primarily all about the money, and with guidelines like these and human nature such as it is --- I mean really!

The next topic discussed in the newsletter was Agency Disclosure.

• “The Agency Disclosure requirement stipulates that at the first personal meeting to discuss a specific property, prospective Buyers and Sellers be notified of the agency relationship using the state disclosure form, which must be signed by the Buyer or Seller and retained on record by the broker for a minimum of three years.”

In Massachusetts, as stated above, the Agency Disclosure form is a Mandatory requirement. It is not a contract and therefore does not bind the consumer in any way to the agent they are working with. It is an effort to avoid misunderstanding and litigation by providing full disclosure. However, many agents do not present the Agency Disclosure form to the consumer at all. Perhaps they are fearful it will be off-putting or, in reality, it is because they themselves do not understand it and don’t realize it is the law. Also, many agents present the mandatory disclosure to consumers with the implied assumption that it binds the consumer to them as a ‘client’. This misrepresentation and use of the Agency Disclosure form is critical to any relationship actual or implied.

When an agent presents a mandatory agency disclosure form to a Seller and the agent selects that he/she represents a Seller, you can rest assured it is because that Seller has entered into a contractual relationship with the agent who is now the Seller’s fiduciary. The agent has an ‘Exclusive Listing Agreement’ with the Seller. If the agent selects that he/she represents the Buyer, legally that agent can only do so with written authorization and consideration from the Buyer. These are the elements that define a contract (“An agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration”).

Establishing Buyer Representation must be a two-pronged conversation. “Mr and Mrs Buyer, I am required by law to present you with this Agency Disclosure form mandated by Massachusetts Law, which I must ask you to sign before we can discuss any properties you are interested in. I want to be your Exclusive Buyer Agent, but unless we also execute an Exclusive Right To Represent Agreement, I will not be able to advocate in your best interests as your fiduciary.”

If a written contract is not executed establishing a fiduciary relationship with a Buyer, the agent is actually a Facilitator and represents neither the Buyer nor the Seller. Just remember that the Seller will have 100% representation and you the Buyer can also have 100% representation, but only if you enter into an Exclusive Right To Represent Agreement without consent to Dual Agency.

Another Huge Opportunity for Home Buyers

As part of the new Economic Stimulus Bill being thrashed around in the senate, and on top of the Tax Credit proposed for all home buyers allowing them a tax credit at the rate of 10% of the sales price up to a limit of $15,000, there now is Amendment 353.

Amendment 353, proposed by Senator John Ensign, Republican Senator from Nevada, would provide 30 year fixed rate financing at about 4%, for anyone purchasing a primary residence. If this passes the House and if there is more sensitivity by lenders in handling those threatened by foreclosure, we could really be on our way to recovery in the housing market.

You Want a Great Deal, But Do You Really Want a Foreclosure?

Foreclosures represent a mammoth portion of today’s housing inventory. In RealtyTrac’s recently released 2008 Foreclosure Market Report, they showed a total of 3,157,806 foreclosure filings. The number of default notices, auction sale notices and bank repossessions reached 2,330,483 properties.

Up until now most people were of the opinion they could save huge sums of money buying a foreclosure property. However, more people are shying away from that process, and if they are willing to engage at all, they are demanding steep discounts averaging 25% from the listing price, and many are expecting to pay 50% less than for a non-foreclosed home. According to a recent Moody's Economy.com report, since the peak of the market several years ago home prices fell in 70% of all metro areas. Although the decline in most metro areas was modest, prices did decline by 5% in 116 metro areas and more than 20% in about 50 metro areas. In the most depressed markets, a buyer insisting upon a 25% discount doesn’t seem like that much for a distressed property. But this all depends upon how realistic the listing price is.

Banks are still requiring BPO’s as part of their preparation for marketing foreclosures, but the problem with that approach is they are looking back at the market for values, and in declining markets they need to look forward when pricing properties. The result in most cases is banks overestimate the listing price. All they know is what they are owed and that is all they care about. So what happens is properties sit on the market for long periods of time suffering from accelerated deterioration or vandalism. Someone will have to pay for the repairs and the bank does not want to assume any responsibility.

In December, Trulia and RealtyTrac published a survey indicating that in the seven months prior to the study the number of people interested in foreclosures dropped by seven percent to 47%. The first study reported in April 2008 by these market tracking companies recorded 69% of the buyers polled had a negative opinion of foreclosures. Since then the number has risen to 80%. On Martha’s Vineyard there are very few foreclosures and I continue to maintain that buyers can do better negotiating on a non-foreclosure property.

Senate Moves to Expand Tax Credit as High as $15,000

This could be an excellent incentive for some home buyers on Martha’s Vineyard who can qualify. Currently, the maximum tax credit is $7500 and that is only for first time home buyers, but if this new amendment approved by the Democratic Senate passes the House and goes into effect, buyers who are purchasing a home as their primary residence, regardless of whether they are first time buyers or not, will receive a $15000 tax credit or 10% of the home purchase price, depending upon whichever is less. The tax credit will be in effect for one year.

All Real Estate Is Local?

The National Association of Realtors has been working diligently through national ads for several years to educate consumers that all real estate is local. They don’t think what is happening in one area of the country is happening everywhere. I absolutely agree but it is like second hand smoke, everyone is affected to one degree or another.

With the ever deepening economic crisis crawling into every aspect of our lives and the reality that this is a global crisis of unprecedented proportion, I would rephrase the slogan and say all real estate is the same, but different.

I was reading an article about the effects of what is now an epidemic real estate crisis in the UK, effecting one of the wealthiest resort areas in the world. Fortunes have been lost and high rollers living in $7,000,000 homes are now living in apartments above retail shops. Playgrounds around the world are all affected by the hubris that brought the market down, from Hollywood to Dubai and Monte Carlo.

I am going to paraphrase part of a commentary that expresses a sentiment that rang a bell for me with regard to Martha’s Vineyard. However, it was written about a seaside luxury resort area in the UK. I will leave out the location specific parts so you can fill in the blanks.

“I’M not surprised the credit crunch has hit (blank). … Why should it be immune?”

“(Blank) is a very, very beautiful place. If prices coming down makes it more accessible to ordinary people, that is a good thing.”

“Locals were becoming very concerned about the way the place was changing.”

“(Blank) is a quintessentially English place and should remain so.”

“Prices … were way too high. The fact they are coming down is good.”

“It makes (blank) more affordable and attracts the right kind of person for the area.”

“Hopefully more local people will be able to afford to move there and it will remain as beautiful as it is.”

All those who feel this way about Martha’s Vineyard raise your hands.

Martha's Vineyard Real Estate --Then and Now

I was thinking about how this recession compares to the last one. The unemployment rate in Massachusetts was 9% in the early 90’s, and today it is about 6%. We also had about three times as many properties on the market here on the Vineyard.

If you are sitting on the fence, knowing in your heart that this is your chance of a lifetime to own property here but reluctant to get into the game because you think the market will go down more, you may be right. But you may regret it. If this is really your dream, do yourself a favor. Calculate exactly what your savings would be if you bought that perfect property you’ve been watching now, versus perhaps waiting until the market drops another point and you have to settle for something else. We all know the old saying, 'don't let life pass you by'.

Dear Islander, I Envy You

2008 was a very tough year. I think we all felt, or should have felt the pain by now. My business is real estate. Much of the focus nationally as well as locally has been on what has happened to the real estate market. Most of the talk is negative as are immediate future predictions. Negative thinking is easy.

In my latest SplitRock Real Estate e-Newsletter, I directed my readers to an article that appeared in the MV Times, “The Reality of the Martha’s Vineyard Real Estate Market”. My clients and readers know that I have been giving them the same information for quite some time now, but it is nice to hear it from another real estate professional and to look at it in terms of bar graphs. More importantly, it is important to be reminded that this is merely a cycle we must go through, as we have done many times before. As the author said, real estate markets go through regular cycles of (3)5 years down and (7)10 years up. Even the stock market goes through cycles, and theirs are usually 20 to 25 years. I’ll admit we are in a real pickle right now because it is not just the United States that is suffering; this is a global meltdown and the ripple effect is affecting everyone which will result in a prolonged overall recovery. What I found most interesting about the MV Times article was one of the reader comments. Here are some excerpts of that reader’s rather harsh perspective:

“As tragic as this downturn is for the local economy, and as much as it may usher in a different era ahead, I feel a bit glad and relieved about it all.
“I have come to believe that economic progress is actually opposite of quality of life.
“I am someone who first feel in love with the Vineyard in the 1960's. It has not improved since then. In fact, as we get richer by material standards. It actually gets poorer. Material progress has simply been ruining the place. We just adjust to the incremental changes and are, therfore, less likely to notice.
“It is barely distinguishable from the places we came here to escape.
“The growth has diminished the Vineyard's most precious jewels....what we get for free. We have simply over-exploited it.
“Economic ruination would be the Island's salvation, in non-material terms. Now, there's an alien concept, indeed.
“Ruin is rebirth.
“It's of little matter to me, though. I have already moved off-island to another place that reminds me of the love I had for the Vineyard so long ago. I come back to visit now and again, and am, frankly, quite happy to leave.”

I remember when I first came to the Vineyard in the ‘60’s with my parents; they no longer enjoyed summering in ‘the Hamptons’. Martha’s Vineyard was a very quiet place and not too many people knew about it. The ‘Natives’ were typical New Englanders, and not very forthcoming or welcoming, but once they accepted you they were the best. I think one of the circumstances hindering population growth on the Vineyard was transportation, and that factor more than anything isolated the Vineyard from America, but that is irrelevant at this point.

I find it curious that the MV Times reader moved away from the Vineyard, but yet he still follows Island news. His acrid comment above reminded me of a developer who ran through the Vineyard in the ‘80’s like a swarm of locust, and then abruptly left for greener pastures. He was asked by a news reporter in his new location why he left. He said, ‘The Vineyard is like an old lady who has lost her charm’. Sure the Vineyard has become more crowded and sure we have once again seen carpetbaggers come and go. But the Vineyard has really not changed that much --- honest! I know people who have lived all over the world and in crowded urban areas who swear this is where their soul is at home, and this is where they will come to recharge themselves, bond with family and loved ones, and where they will live out their days when they retire --- or before.

The Martha’s Vineyard Gazette published a wonderful commentary in their print paper, but unfortunately they did not put it on-line. The article was written by the late CBS correspondent, Don Hollenbeck, who sadly committed suicide in 1954, possibly caused by the effects of Malaria. It is not clear when he wrote his article, but it was most likely at least 50 years ago. I think the article demonstrates the colorful fabric that those who really know and understand the Vineyard realize is still very much in tact. The title of the Gazette commentary was taken from the last line of Hollenbeck’s article, ‘there are no Islands anymore’, and that line was actually the title of a poem by Edna St. Vincent Millay, written in 1940. Keeping in mind the time line of these writings, I want to preface Hollenbeck’s reflection with a couple of paragraphs extracted from Millay’s work:

Dear Islander, I envy you:
I'm very fond of islands, too;
And few the pleasures I have known
Which equalled being left alone.
Yet matters from without intrude
At times upon my solitude:
A forest fire, a dog run mad,
A neighbour stripped of all he had
By swindlers, or the shrieking plea
For help, of stabbed Democracy.

We live upon a shrinking sphere—
Like it or not, our home is here;
Brave heart, uncompromising brain
Could make it seem like home again.

(There are no islands any more.
The tide that mounts our drowsy shore
Is boats and men,—there is no place
For waves in such a crowded space.)

I hope you enjoy the warm spots in Hollenbeck’s article as much as I did. Please rest assured, what was great about this Island 50 years ago still exists, you just have to slow down and look a little harder.

There are No Islands Anymore, Only a Certain State of Mind
Editor's Note: Don Hollenbeck was a CBS correspondent and journalist who produced a radio show in the late 1940s during the Edward R. Murrow era, titled CBS Views the Press. He was also a summer visitor to the Vineyard and was interviewed in the Gazette in 1949. Mr. Hollenbeck, who committed suicide in 1954, is the subject of a recently published biography authored by Loren Ghiglione (CBS's Don Hollenbeck, Columbia University Press). A distinguished journalist in his own right and professor at Northwestern University's Medill School of Journalism, Mr. Ghiglione is also a longtime Vineyard visitor. In researching his book, Mr. Ghiglione came across this undated piece about the Vineyard which was written by Mr. Hollenbeck. It is published here with permission.

By Don Hollenbeck, date unknown

"This is out of the world, but this is America: This is our country. Picture an Island of triangular shape, a hundred miles in area, lying seven miles off the southeast coast of Massachusetts; an Island which is all things to men. This Martha’s Vineyard described as a place of old towns, new cottages, high cliffs, white sails, green fairway, salt water, wildfowl, and the steady pull of an ocean breeze.

"This is a land of contrasts: from the brazen honky-tonks of the town known as Oak Bluffs, with its jukeboxes, its gaudy post cards, its bus drivers hawking for business and its revival season, to the well-bred quiet of Edgartown, with a social air twice as rarefied-as that of Newport, to the view from Indian Hill, 260 feet high.

"There one stands and views the prospect: to south and east stretches a level plain of dwarf forest top without a sign of civilization. To the west, there are rocky outcrops and tree-filled ravines, and to the north, the cerulean blue of Vineyard Sound. Of this world and yet out of it might apply of all places to Martha's Vineyard; it meets perfectly the need so often felt for a retreat; for a quiet time of contemplation, when, as in this springtime, one may leave the noise of the jukeboxes at Oak Bluffs, and listen only to the sound of the frogs the Islanders know as pinkletinks.

"This is the land Leif Ericson may have visited in the eleventh century - on a tiny island eight miles off-shore - and island called Noman's Land, you may view a boulder, and on if, if your imagination is cooperative, you may see dimly scratched the numbers 1004.That date is accepted by some devout Islanders as good enough evidence that this is the land Leif Ericson found and named Vinland; indeed, the wild grapes grow in profusion on the Island, which in area only may be compared to Manhattan island, 150 miles away, and which is, in a different sense, all things to all men . . ..But the contemplative man finds on Martha's Vineyard other things to think about than he does on Manhattan island, now that spring is coming.

"A pink and white mayflower is blooming h the office of Miss Mary Nunes, the Oak Bluffs tax collector; a weather-wise Islander has reported the arrival of the first red-winged blackbird. Islanders know that the red-winged blackbird has advance and inside information about the weather; spring cannot be very far behind.

"We live with the sea here on Martha's Vineyard; the sea is our fortunes and our fate: what the sea gives us is our livelihood. We See signs of spring on the sea, too, in a fishing boat. Now the wind breezes from the south'ard; the sea which can be cold and hostile through the winter seems more friendly now - it is blue under the warmer sun instead of icy-gray: and in" the beach pools, there are flocks of ducks and coots squawking.

"The sparrows, too, seem to have inside information on the springtimes, and are busy picking up straws for their nests. It is impossible for a man to get too downcast when the sun shines on the blue water around Martha's Vineyard at this time of year when the wind has veered to the south'ard: light airs they are indeed, fragrant with the promise of the season.

"Soon it will be the time when a man can go out and get enough sassafras bark to brew a pungent cup of tea: this is the decoction which in New England seems to clear away the miasma of winter, and which gives one the proper feeling of springtime.

"There seems to be a sort of greenish mist around the bare branches of the trees now; at any time, the lilac hedges will burst into aromatic color, complementing perfectly the silvery, weather-worn look of the shingles and the wood in the sea-salt laden air of this Island so close to, and yet so far from, the rest of the world.

"Soon the chestnut tree over the smithy in Edgartown will be showing signs of transfiguration, and Orin Norton, the blacksmith, can open doors of his forge, and beat up the sparks to the admiration of the children - they would never think Longfellow's poem over-sentimental or shopworn: the village blacksmith is a real person to the children of Edgartown. Now, in the fire-lit gloom of the forge, Orin Norton talks to you about the six-hundred pound anchor which he has just completed. He says, "it's such a darned good one that I figure I ought to charge a little less for it than usual." "Now why in the world why?" you ask in real astonishment at this paradox. "Well," Orin says,"it's like this. I think the man who ordered it will be perfectly satisfied. In that case, he won't be coming around here finding fault, and taking up my valuable time, so I’ll be the gainer if I knock 'something off."

"This is the-spirit you find repeated again and again on Martha's Vineyard where the tempo of the world seems to have slowed down in the winds that veers from the mainland to the sea and back again. You find it in the case of Carl Reid, who runs the general store in the town of Menemsha -this is the fishing town where the air is almost always full of the aroma of lobster bait, drying in the sun. You may ask Mr. Reid for fish hooks, only to be told that he isn't carrying them this season. "People bothered me too much about 'em -had to fuss too much," Mr. Reid says. It would please him if there were only one brand of everything, from cigarettes to molasses, and the people couldn't pester him, fretting about labels, and so on.. . .When you come to Martha's Vineyard, you must note expect the usual standards to apply, to repeat, it is of this world, and yet out of it. It has its own standards of conduct and department, and off-Islanders, as the permanent population calls the summer vacationers, sometimes have difficulty in understanding this.

"The steady population of Martha's Vineyard is about six hundred; in the summer, it is nearly seven times that figure. You may go there year after year, and become friendly to a point with the regular inhabitants, but if you are an off-Islander, you are never quite accepted . . . Oscar Flanders, who drives a truck, may call you by your first name, but it may be two years or more before you feel sufficiently at ease to call him by his first name, and then you are self-conscious about it: there is a delicate point of etiquette involved here which you must understand instinctively and emotionally, rather than logically . . . . Not long ago, a general of our Army was spending a holiday on the Vineyard, relaxing thoroughly in civilian clothes. He was well known to the steady population; he had been a summer person for several seasons.

"Almost anywhere in the world, a general of an Army, even in mufti, seems to get special consideration; he is usually exempt from small trials and tribulations which beset the rest of us. Our age-old awe of, and respect for, the soldier, force us into a deference which may be difficult to rationalize, but which nevertheless exists.

"One day the general, perhaps preoccupied with a matter of logistics concerning the purchase of a pack of cigarettes, drove his automobile through a stop light in Edgartown – a flagrant violation of a traffic ordinance. Almost anywhere else, the traffic officer recognizing him would probably have let him off with a courteous and deferential reminder, but not on Martha's Vineyard.

"The general got a ticket, and as the policeman said, he considered the general entitled to special consideration only when he - the general - was on duty. And he wasn't on duty on Martha's Vineyard . . . .

"But there have been soldiers on duty on Martha's Vineyard in recent years, and their presence simply emphasized the far-away-and-long-ago quality of the Island. Although these soldiers were only seven miles over the Sound from the Commonwealth of Massachusetts, they were considered to be on duty outside the continental limits of the United States; they drew correspondingly bigger pay, and they were entitled to wear the Atlantic ribbon . . . .

"But nowhere could one find more vividly exemplified the spirit of Martha's Vineyard than in another reference to the Flanders family - the truck driver whom you hesitate to call by his first name. The Flanders have a son, and some years ago, before the world was set afire, young Flanders as a public school student, was assigned the task of writing an essay on Mussolini. At that time, the late dictator was arousing a certain amount of admiration for making the trains in Italy run on time. But young Flanders saw him in a rather different light: his essay began with these words: "Mussolini is an off-Islander . . . ."

"But there have been changes in the world, and again, the case of young Flanders shows what they have done to Martha's Vineyard. Mussolini became something other than an efficient administrator and train operator; others of his sort came to power, and young Flanders growing up, found himself a member of the United States Army Air Force in the Pacific.

"He was off-Island at last, and he gave a good account of himself: he won the Distinguished Flying Cross. And as he moved from island to island in the Pacific - islands like and yet unlike his own home, he must have come to the realization that many others of his generation have come to in the past few years: there are no islands anymore, not even Martha's Vineyard. "

Well, that's it. Now I ask you, what's your state of mind?

REO’s: A Cautionary on Bank Own Property Purchases

Properties that have been repossessed through foreclosure by a lender are called REO’s. REO stands for Real Estate Owned. If they are bank owned, why not call them BO’s? I suppose it is obvious why not, although many of them stink. When buying REO properties there are some key differences to understand, as opposed to a traditional real estate purchase. First and foremost, you as a buyer have little or no ability to negotiate the price or terms with the seller. REO properties are sold “AS IS” and the seller is a financial institution with no emotional attachment to the property for sale. Unlike a traditional homeowner, they do not have any personal interest in who is moving into “their home”. There is a good chance that no one from the bank has seen the property, or been inside the house. The same holds true for the listing broker if that listing broker is not local. The lender is only concerned with receiving the highest Offer and best terms possible to suit themselves. Most of the negotiation process is completed via internet e-mail. The only information the bank will receive is the terms of the Offer. They only care about how much you will pay for the property, and how you will pay for the property.

Be sure you speak with your lender before submitting an offer on an REO property. In most cases, a pre-approval letter, not a pre-qualification letter, is required simultaneously with the Offer to Purchase. The bank wants to be certain they are considering an Offer from a buyer that has the credit and financial wherewithal to see the deal through. In many cases the seller even wants to see a bank statement showing you have enough cash in your account to consummate the transaction. Isn’t that an invasion of privacy?

Since you can’t rely on personal interaction with the seller, the cleaner the Offer the better it will look. Because REO properties are sold in “As-Is” condition, you want to look for a loan program that applies to this type of property. The condition of the property may not qualify you for certain types of traditional loans. If the property is in poor condition, and most REO’s are in poor condition, you might want to investigate a construction loan. Many lenders are now offering programs geared specifically for distressed properties. This way, the repairs can be completed after the buyer takes possession of the property. If your Offer is accepted, you are entitled to have your own property Structural Inspection, but you will only have a few days to complete the inspection. Quite often, only a dry inspection will be possible. By that I mean the power and water will not be turned on. Some REO clearing houses will advance funds and take responsibility for ‘trashing out’ the property and generally cleaning it up, because it helps them market the property. However, that is being done less and less today because listing companies are finding it very difficult to get reimbursed for their expenses. It’s getting ugly, and it may get worse before it gets better.

What about the closing date? Yes, that is also handled differently from the way a traditional purchase is closed. In a traditional sale, it is possible for the seller to be flexible about a closing date. Some contracts use the term “on or about” a certain date. Sellers in a traditional sale tend to be more willing to adjust plus or minus to make the sale work, as long as the Closing takes place within a reasonable number of days from the original date agreed upon. However, REO contracts use the term “on or before” a certain date, and the bank will tell you what the closing date will be. The bank will expect the Closing to take place no later than their stipulated closing date, and if there is a delay on the buyer’s side causing the buyer to be in default, the bank will either terminate the contract, with the buyer forfeiting their down payment, or the buyer will be penalized a specified dollar amount per day for an extension. Most often that amount is $100.00 per day. However, because of the enormous inventory of bank owned properties today, in my experience sales often do not close on time and the bank is responsible for the delay. A 30-day closing can end up being a 120-day closing, and that could mean the buyer will lose their loan rate lock. Nevertheless, I cannot stress strongly enough that the bank sets the timelines and they could care less about what you want.

Because REO transactions are different from traditional purchases, any buyer interested in an REO property needs a knowledgeable support team consisting of a competent and vigilant real estate buyer agent who knows how to look out for their buyer client’s best interest and can interface fluidly with a good attorney. Yes, the next member of the team needs to be a GOOD ATTORNEY, one who will take the necessary care to investigate the property title. What you do not need is a wishy-washy, don’t ask, don’t tell real estate agent and attorney, who just wants to get it done, collect a fee and move on.

REO properties appear to be very attractive opportunities on the surface, and you can save money purchasing an REO property. However, you can also end up spending considerably more money than you would on a traditional purchase property, not to mention all the stress and anxiety that has become typical with this type of transaction. Many times the offering price is set low in order to attract buyer attention with the hope that multiple buyers bidding on the same property will drive up the final price. Buyers are encouraged to submit their highest and best offer without the opportunity to know what the highest price is that they are bidding against. Since these properties are being sold “AS IS”, and since the onus is usually on the buyer to correct any structural deficiencies in the property, repairs can drive the final price above the realm of what would be considered a good deal. With short sales, foreclosures, and REO’s there are no guarantees, and in Massachusetts, it’s Caveat Emptor. That is why you need to hire an Exclusive Buyer Agent who deals with buyers’ needs day in and day out. On Martha’s Vineyard you want SplitRock Real Estate, an exclusive buyer agency specializing in careful buyer representation.

WHAT’S “WRONG” WITH THE MARTHA’S VINEYARD REAL ESTATE MARKET

Starting with the premise that commerce is activated by supply and demand, I want to look at what is wrong with the Martha’s Vineyard real estate market today. What I discovered was that, in fact, there is nothing wrong with the Martha’s Vineyard real estate market; it is just that this market is confusing to many people and even more confusing today given the dire conditions in the financial market and a disparity in seller motivation factors. But first let me establish a few facts as guidelines:
<> This is not a place people have to be, they want to be here. Martha’s Vineyard is a destination and for the most part, a second home market.
<> This Island is only 20.5 miles long, 87.48 square miles in total land area --- they are not making any more of Martha’s Vineyard.
<> With home prices averaging almost 100% higher than the national average, ranging from $300,000 for a shabby ‘fixer-upper’ to $25,000,000 and above not everyone can afford to swallow that pill.
<> The cost of living is about 60% above the mean, so once again living here is surely not for everyone, but that does not diminish its popularity.
<> There are between 775 and 850 properties on the market, depending upon the method of tabulation used, which is about four times as many properties as there were at the height of the market.
<> The current inventory is about one-quarter of what we had to deal with after the market broke in 1988, and the population density has increased significantly since 1990.

The total inventory at the time of this writing totals 777 properties. I want to break down that number, which includes all classifications of properties so you have a better perspective:
<> Up to $200,000 = 7 properties (Note: This includes a share in a fishing camp, an aircraft hanger, time shares and an office condo.)
<> $201,000 - $400,000 = 86 properties
<> $401,000 - $600,000 = 162 properties
<> $601,000 - $800,000 = 140 properties
<> $801,000 - $1,000,000 = 85 properties
<> $1,100,000 - $2,000,000 = 157 properties
<> $2,100,000 - $3,000,000 = 51 properties
<> $3,100,000 - $5,000,000 = 54 properties
<> $5,100,000 – $30,000,000 = 35 properties

Only 18% of the inventory is above $2,000,000. That means the so-called lower end of the market is where the fat is. However, within that segment lies a misleading inflationary factor --- sellers who do not have to sell.

For a few years now we have been reading about how the real estate market has tanked in some areas of the country, falling into what many view as a fathomless abyss. The media has us believing this was the general condition everywhere. In an attempt to educate consumers, the National Association of Realtors® launched an educational campaign proclaiming ‘all real estate is local’. This is true, all real estate is local and in many parts of the country the market has been pretty much stable or a recovery is under way. But the message came too late, the die was cast, and for most of the country sales activity started to stall. Sellers started to panic and buyers delighted that the tide was turning in their favor. No longer would the buyers be at the mercy of a seller’s market. Even on Martha’s Vineyard buyers believed they finally had a chance to get a foothold on their dream Island.

Overall, however, property values still remain solid on Martha’s Vineyard. Yes, I am serious. If you are interested in real estate on Martha’s Vineyard, you should be paying attention to this local market and not be influenced by broad brush studies that are based on limited national metropolitan samplings. I don’t deny there are pockets across the country where prices have fallen 40% or more. These areas are not the norm. On Martha’s Vineyard, overall, the price drop has only gone down about 14% since 2006. For anyone who invested in Martha’s Vineyard real estate 5, 10, or 20 years ago, the good news is their investment has increased handsomely in value over that time period, even with the occasional bumps in the economic highway.

Exclusive Buyer Agents, such as SplitRock Real Estate, work very hard to educate consumers and create Power Buyers. I have a number of buyer/clients who have been working with me for 6 months, a year, even three years or more. They have a sincere desire to be here if they can only find the right property at the right price (Isn’t that typical of what motivates buying decisions?). Much to their chagrin they are discovering that prices on the Vineyard make no sense. Comparables are difficult to come up with, and ultimately the buying decision has to be an emotional decision. For those who are thinking long term and understand the fundamentals of real estate investment, the fact that prices overall have not gone down much should be a reassuring factor that lends more confidence to a buying decision. For others, if they cannot afford to make the investment now they will regrettably join the ranks of the would-have, should-have, could-have buyers.

So what is wrong with the Martha’s Vineyard real estate market? Buyers who enter the Martha’s Vineyard real estate market, regardless of whether it is an up or a down market are confused and scared. They do not want to make a mistake or appear foolish. There are many sellers who are sincerely motivated and will actively compete, engage and negotiate with buyers to sell their properties in this market. I am not including what we call distress sales, i.e. short sales, foreclosures and bank owned properties (aka REO’s). The problem lies with the ‘ego seller’ who lists their property for sale, but really does not care if they sell now or two years from now. They are not willing to listen to the market (IE their seller agents), and insist on holding a hard line because they think their properties are special, and their posture is "I don't have to sell". I call this the ‘goose that laid the golden egg’ mentality. Sellers who are not competitive are like buyers who are not qualified; they are wasting everyone’s time and money. If you are a serious seller, please don’t be offended by an offer you receive. Be willing to graciously engage with a meaningful counter offer. Properly educating buyers is a difficult, time-consuming process. When they get to a point where they are comfortable making a reasonable offer, if they are coldly rejected by a seller, it sets the whole process back considerably. If you recall the moral of Aesop’s fable, he who wants too much loses everything. In this case it is the entire Vineyard real estate market that is losing.

As average buyers watch the market week after week, the inventory continues to grow. Some buyers hold out, sitting on the sidelines, as they keep hoping those overpriced properties will come down in price. They resist making a buying decision waiting for sellers to cave in. The result is a slow market with minimal inventory absorption. When the inventory was limited, the demand was greater and the market moved briskly. If this market is going to get back in stride, it is my opinion that sellers, who don’t need to sell, should remove their properties from the current inventory. If sellers don’t like where the market is today and they are not willing to be competitive and engage in negotiations, they should wait and relist their properties when happy days are here again. And surely, this too shall pass and happy days will return.

Is the Martha’s Vineyard Housing Market really that Bad? I Don’t Think So

Looking at the overall picture of the housing crisis, perspective and understanding has been lost as a result of what is essentially a localized crisis in 4 states: California, Nevada, Florida, and Arizona. According to statistics from City-Data.com, 54 of the 101 cities with the largest population increase from 2000 - 2006 are located inside California, Nevada, Florida, and Arizona - the four states most affected by sharply decreasing home values. These four states saw the largest population influx between 2000 and 2006 triggering the need for more housing supply and with that demand, prices started to go up at 15% or more annually.

Anyone who has been in the real estate investment business knows that what goes up must come down. Many mortgage lenders bolstered by the above average appreciation rate year after year irresponsibly let their guard down, lowering lending standards and granting all sorts of exotic loans they should have known could not be repaid. Opportunity and greed propelled builders, real estate licensees, lenders and investors to push the envelope until the bubble burst. Today there are 15 states struggling to correct themselves; that is 30% of the country with 37% of the population and approximately 4 million problem mortgages. That breaks down to 7 percent of all mortgages owned in the U.S. Sure, you hear numbers reported by RealtyTrac, a foreclosure reporting service, stating one in every 464 U.S. households were served with a foreclosure filing in July --- 272,171 households, but the deepest concentration of those foreclosures are in California, Nevada, Florida, and Arizona. In Cape Coral-Fort Meyers, Florida alone, one in every 64 households received a foreclosure notice in July. On Martha’s Vineyard, RealtyTrac is reporting only 34 properties in Pre-foreclosure, Foreclosure or REO status. There are approximately 14,000 households on Martha’s Vineyard. The current inventory of properties for sale is less than 800 properties. Does anyone remember the early nineties? This is nothing compared to back then, but business is so much more difficult today because everyone is afraid of doing the wrong thing. Most of the public continues to believe the media, and the media continues to fuel the fear factor because, “misery sells newspapers”.

Not having a clear picture of the market has resulted in a lack of movement stalling the market, except for those buyers who ignore the media negativity and know how to read the numbers. I believe we are about to see a significant paradigm shift being expressed in two ways. Frustrated sellers are finally taking a hard look at their pricing realizing that their past strategy has not worked and has done them more harm than good. They are listening to their seller agents and cutting prices to the bone, well below assessed value in many cases. Sellers who have refused to price their properties realistically for today’s market and were never really sincere about selling, are taking their properties off the market. They think the market is about to turn around and prices will start to inch back up within the next 4 to 9 months. They can wait. I think this will paint a clear uncluttered picture for consumers who have been anxiously waiting with pent-up desire to get into this market but have been unsure and confused. They will finally realize now is the time to buy. They want to buy!

This fall, mortgage rates are forecasted to go up as much as a quarter percentage point according to Jim Vogel, an analyst at FTN Financial Capital Markets. This prediction is a result of Fannie Mae reporting a second-quarter loss of $2.3 billion and their prediction of more heavy losses resulting from the home-mortgage defaults and price declines centered primarily in California
(-28%), Florida (-17%), Nevada and Arizona. Fannie Mae has already said they will stop buying alt-A loans by the end of 2008. Fannie Mae and Freddie Mac are going to be limited in their ability to buy and guarantee home loans, and they will increase fees to borrowers seeking LTVs of 75-80 percent. Increases in the cost of borrowing will reduce the pool of homebuyers with the expected result that buyers with strong liquidity and solid credit will be in the catbird seat. As of today, mortgage rates are still very attractive. Martha’s Vineyard local Island banks understand our market and are excellent at helping qualified buyers to create a loan package that suits their needs. Now is the best time to buy, waiting will only create memories of what could have been your dream come true.

Short Sales Are Not A Slam Dunk

Back at the end of January I wrote a brief e-Newsletter editorial about the ‘Short Sale’ phenomena, how it works and how the Urban Housing Corp. in Roxbury, MA was working to help suffering homeowners to work out their situations before losing everything. I also talked about how difficult and frustrating it could be when the mortgagor owed significantly more money than the current market value, I mean hundreds of thousands of dollars in some cases. I ended by saying “The good news is that Martha’s Vineyard is not one of these distress markets flooded with upside-down investors. Most attorneys here know very little about how the short sale process works, and personally I want no part of it.” Well, here we are at nearing the end of April and I still want no part of short sale negotiations, not that I will not engage if a buyer client insists, but now we have an increasing number of home owners here who are facing foreclosure and are offering their properties as short sales.

At the end of 2007 and the beginning of 2008, lenders were more willing to accept significant short sale losses and move on, but I believe that is not the case any longer --- especially here on Martha’s Vineyard. I believe we are walking in the valley of this down market and the turnaround is clearly in sight. That means lenders are going to be stubborn and if they cannot sell closer to their investment, they will take back the properties and wait it out. Here is an article that appeared in the Wall Street Journal today that further addresses Why Lenders Are Leery Of Short Sales.

A Cautionary To Homeowners - Reverse Mortgages

This article appeared in today's Wall Street Journal. I have always believed that Reverse Mortgages can be a trap unless they are structured properly and are carefully thought through by the homeowner.

By Donna Kardos
The Wall Street Journal Online

"The Financial Industry Regulatory Authority urged homeowners over the age of 60 to carefully weigh their options before tapping into their home equity through reverse mortgages to obtain additional income for their retirement years.

"The group, formed by a merger of the NASD and some regulatory functions of New York Stock Exchange parent NYSE Group Inc., warned that a reverse mortgage -- an interest-bearing loan secured by the equity in a home -- can jeopardize their financial futures.

"With a reverse mortgage, a bank makes payments to a homeowner instead of the homeowner making payments to a bank. The loan is repaid, with interest, when the borrower sells the house, moves out or dies. Reverse mortgages have high fees -- typically about 7% of the home's value -- and they make it difficult for homeowners to leave the property to their heirs.

"The warning notes that, in some cases, those who sell the mortgages may profit from the their sale, giving them twice the incentive to talk someone into a loan they may not need.

"Finra Chief Executive Mary L. Schapiro said home equity "is often a homeowner's most valuable asset and most precious source of retirement security." Accordingly, the agency reminded homeowners that reverse mortgages should generally be a last resort.

"Reverse mortgages were originally designed as a tool for aging, low-income homeowners to keep their homes, Finra said. But they have been used more often by retiring Americans as a way to finance a more-extravagant retirement lifestyle than they could otherwise afford.

"Still, as foreclosure rates continue to rise amid the subprime-mortgage crisis, some homeowners who have built up equity in their home may consider reverse mortgages their best option against losing it."

Related Article Reverse Mortgages: A Way Out Of a Bind for Older Homeowners

The Private Homecare Services Program of the Vineyard Nursing Association

Extra help for Vineyard Visitors is just a phone call away!

Families vacationing on Martha's Vineyard that travel with elders, infants, or those with a disability come to the Island facing unique challenges. The Private Homecare Services Program of the Vineyard Nursing Association is here to specifically assist with these special circumstances.

Whether your loved one requires nursing attention or companion services, we are here to help.

Some of the services they provide are:

· light housekeeping and meal preparation
· assistance with getting ready for the day or getting ready for sleep
· help with daily injections and lab work
· companionship for those that are not safe or don’t feel safe alone
· babysitting or respite care

Assistance is available from 2 hours to 24 hours a day.

For more information or to arrange for services please call: 508-693-6184.

1031 Exchanges and Vacation Homes actual text for IRS Rev. Proc. 2008-16

IRS Rev. Proc. 2008-16 on Safe Harbor for Like-Kind Exchange of Dwelling Unit

IRC Section 1031 IRC - Section 280A Document Date: February 15, 2008

This revenue procedure is scheduled to be published in Internal Revenue Bulletin 2008-10, dated March 10, 2008.

Part III

Administrative, Procedural, and Miscellaneous

26 CFR 601.105: Examination of returns and claims for refund, credit, or abatement; determination of correct tax liability.

(Also Part 1, §§280A , 1031).

Rev. Proc. 2008-16

SECTION 1. PURPOSE
This revenue procedure provides a safe harbor under which the Internal Revenue Service (the "Service") will not challenge whether a dwelling unit qualifies as property held for productive use in a trade or business or for investment for purposes of § 1031 of the Internal Revenue Code.

SECTION 2. BACKGROUND
.01 Section 1031(a) provides that no gain or loss is recognized on the exchange of property held for productive use in a trade or business or for investment (relinquished property) if the property is exchanged solely for property of like kind that is to be held either for productive use in a trade or business or for investment (replacement property). Under § 1.1031(a)-(1)(a)(1) of the Income Tax Regulations, property held for productive use in a trade or business may be exchanged for property held for investment, and property held for investment may be exchanged for property held for productive use in a trade or business.

.02 Rev. Rul. 59-229, 1959-2 C.B. 180, concludes that gain or loss from an exchange of personal residences may not be deferred under § 1031 because the residences are not property held for productive use in a trade or business or for investment.

.03 Section 2.05 of Rev. Proc. 2005-14, 2005-1 C.B. 528, states that § 1031 does not apply to property that is used solely as a personal residence.

.04 In Moore v. Commissioner, T.C. Memo. 2007-134, the taxpayers exchanged one lakeside vacation home for another. Neither home was ever rented. Both were used by the taxpayers only for personal purposes. The taxpayers claimed that the exchange of the homes was a like-kind exchange under § 1031 because the properties were expected to appreciate in value and thus were held for investment. The Tax Court held, however, that the properties were held for personal use and that the "mere hope or expectation that property may be sold at a gain cannot establish an investment intent if the taxpayer uses the property as a residence."

.05 In Starker v. United States, 602 F.2d 1341, 1350 (9th Cir. 1979), the Ninth Circuit held that a personal residence of a taxpayer was not eligible for exchange under § 1031, explaining that "[it] has long been the rule that use of property solely as a personal residence is antithetical to its being held for investment."

.06 The Service recognizes that many taxpayers hold dwelling units primarily for the production of current rental income, but also use the properties occasionally for personal purposes. In the interest of sound tax administration, this revenue procedure provides taxpayers with a safe harbor under which a dwelling unit will qualify as property held for productive use in a trade or business or for investment under § 1031 even though a taxpayer occasionally uses the dwelling unit for personal purposes.

SECTION 3. SCOPE
.01 In general. This revenue procedure applies to a dwelling unit, as defined in section 3.02 of this revenue procedure, that meets the qualifying use standards in section 4.02 of this revenue procedure.

.02 Dwelling unit. For purposes of this revenue procedure, a dwelling unit is real property improved with a house, apartment, condominium, or similar improvement that provides basic living accommodations including sleeping space, bathroom and cooking facilities.

SECTION 4. APPLICATION
.01 In general. The Service will not challenge whether a dwelling unit as defined in section 3.02 of this revenue procedure qualifies under § 1031 as property held for productive use in a trade or business or for investment if the qualifying use standards in section 4.02 of this revenue procedure are met for the dwelling unit.

.02 Qualifying use standards.

(1) Relinquished property. A dwelling unit that a taxpayer intends to be relinquished property in a §1031 exchange qualifies as property held for productive use in a trade or business or for investment if:
(a) The dwelling unit is owned by the taxpayer for at least 24 months immediately before the exchange (the "qualifying use period"); and

(b) Within the qualifying use period, in each of the two 12-month periods immediately preceding the exchange,

(i) The taxpayer rents the dwelling unit to another person or persons at a fair rental for 14 days or more, and

(ii) The period of the taxpayer's personal use of the dwelling unit does not exceed the greater of 14 days or 10 percent of the number of days during the 12-month period that the dwelling unit is rented at a fair rental.

For this purpose, the first 12-month period immediately preceding the exchange ends on the day before the exchange takes place (and begins 12 months prior to that day) and the second 12-month period ends on the day before the first 12-month period begins (and begins 12 months prior to that day).

(2) Replacement property. A dwelling unit that a taxpayer intends to be replacement property in a §1031 exchange qualifies as property held for productive use in a trade or business or for investment if:

(a) The dwelling unit is owned by the taxpayer for at least 24 months immediately after the exchange (the "qualifying use period"); and

(b) Within the qualifying use period, in each of the two 12-month periods immediately after the exchange,

(i) The taxpayer rents the dwelling unit to another person or persons at a fair rental for 14 days or more, and

(ii) The period of the taxpayer's personal use of the dwelling unit does not exceed the greater of 14 days or 10 percent of the number of days during the 12-month period that the dwelling unit is rented at a fair rental.

For this purpose, the first 12-month period immediately after the exchange begins on the day after the exchange takes place and the second 12-month period begins on the day after the first 12-month period ends.

.03 Personal use. For purposes of this revenue procedure, personal use of a dwelling unit occurs on any day on which a taxpayer is deemed to have used the dwelling unit for personal purposes under § 280A(d)(2) (taking into account § 280A(d)(3) but not § 280A(d)(4)).

.04 Fair rental. For purposes of this revenue procedure, whether a dwelling unit is rented at a fair rental is determined based on all of the facts and circumstances that exist when the rental agreement is entered into. All rights and obligations of the parties to the rental agreement are taken into account.

.05 Special rule for replacement property. If a taxpayer files a federal income tax return and reports a transaction as an exchange under § 1031, based on the expectation that a dwelling unit will meet the qualifying use standards in section 4.02(2) of this revenue procedure for replacement property, and subsequently determines that the dwelling unit does not meet the qualifying use standards, the taxpayer, if necessary, should file an amended return and not report the transaction as an exchange under § 1031.

.06 Limited application of safe harbor. The safe harbor provided in this revenue procedure applies only to the determination of whether a dwelling unit qualifies as property held for productive use in a trade or business or for investment under § 1031. A taxpayer utilizing the safe harbor in this revenue procedure also must satisfy all other requirements for a like-kind exchange under § 1031 and the regulations thereunder.

SECTION 5 . EFFECTIVE DATE
This revenue procedure is effective for exchanges of dwelling units occurring on or after March 10, 2008. No inference is intended with respect to the federal income tax treatment of exchanges of dwelling units occurring prior to the effective date of this revenue procedure.

SECTION 6 . DRAFTING INFORMATION
The principal author of this revenue procedure is J. Peter Baumgarten of the Office of Associate Chief Counsel (Income Tax & Accounting). For further information regarding this revenue procedure contact Mr. Baumgarten at (202) 622-4920 (not a toll free call).