By HEINZ DINTER, PhD
Everything you always wanted to know about how much those in absolute control care about your lifestyle and your investment — but were afraid to ask. A combination of deep-pocket bank participation, absolute control over decision-making, carving out lucrative profit centers, and the unchallenged ability to shift operating expenses to others was considered a promoter’s dream. Is it too good to be true?
Editor’s note: This article was originally published in the November/December 1992 issue of Grand Lifestyle magazine and was the result of intensive research begun in 1991 on the activities of Pierre Heafey, a Canadian real estate promoter who set up shop in Miami, Florida and other U.S. locations.
On October 8, 1998 ― after eight years of terror showered upon the author/publisher by those whose unscrupulous and unlawful lifestyle was the subject of extensive writing to warn and inform ― the truth prevailed at long last when a “guilty” plea was volunteered before The Honorable Joan A. Lenard in the United States District Court for the Southern District of Florida. The author’s perseverance resulted in this article (the first of several which documented criminal acts) and triggered the investigation which led to the guilty plea.
Throughout those long and trying eight years, The Grand’s residential unit owners shrugged off the many warnings and shunned the author because he was branded a “trouble maker” for his writings (feverishly fueled and propagated to create such stigma by those exposed in article after article). Was it apathy or fear of reprisal? Common sense tells us (dissecting human nature) it was a combination of both.
Everything you always wanted to know about how much those in absolute control care about your lifestyle and your investment … but were afraid to ask.
A combination of deep-pocket bank participation, absolute control over decision-making, carving out lucrative profit centers, and the unchallenged ability to shift operating expenses to others was considered a promoter’s dream. Is it too good to be true?
Developer Tibor Hollo had a grand dream. With the help of bank money he built the largest multi-use residential building in the southeastern United States. The luxurious complex, located in Miami on the shores of Biscayne Bay, a stone’s throw from downtown, and across the street from a section of town so far ignored by economic revival, was completed in 1986.
“The Grand Condos On The Bay” consists of 810 residential condominium units, a 152-room hotel, and 80,000 square feet of retail space. Hollo also masterminded a formula for protecting his investment with an ironclad document — the condominium association bylaws — that keeps generating attractive profits long after the residential units are sold to homeowners.
Maintaining ownership in the commercial and retail units represents one extraordinary opportunity for profits. Maintaining control of the condominium association that administers the entire complex protects the moneymaking opportunities.
· Residential condominium owners carry the lion’s share of unfairly allocated operating expenses without voting control;
· Ownership of income-producing units of the complex is retained by the developer instead of being turned over to the condominium association for the benefit of the residential unit owners;
· Maintenance and other operating expenses of the developer-owned units — including commercial and retail units — are shifted to the association;
· Construction deficiencies are not corrected at the expense of the developer (they will become a financial burden to the home owners via assessments when the costly corrective measures can no longer be ignored);
· Reserve fund budgeting is voted down by the developer-controlled condominium membership to avoid the necessity of putting up money today, reasoning that the developer won’t be around when major repair problems arise.
Hollo’s dream dissipated because sales of residential units trickled and the banks wanted to get paid on time. The latter took the building back in lieu of foreclosure at the end of 1989 and became the owner and successor developer. They also inherited the formula for success: absolute and ever-lasting control of the complex.
The banks — exposed to public scrutiny and reeling under the pressure from banking regulators — needed to shed their publicly recognizable connection because bank charters (protecting the depositors’ money) do not favor controversial, high-flying real estate ventures plagued by high risk and not readily justified and documented transactions.
Unfortunately, the bank’s profit motive dominated fairness and prevented the new owners from giving control to those who bought in good faith — the residential condominium owners who invested in their home and sought The Grand lifestyle. Instead, the banks made a sweetheart deal with promoters.
A Canadian investment group led by attorney Pierre Heafey and Kenny Arsenault of Quebec purchased the unsold 268 residential units, the hotel, and the retail space of The Grand for nearly $30 million in October 1990. The seller financed the transaction for $23.1 million.
The mortgages continue to be held by the consortium of three banks that financed the original project — the Bank of New York, Bank of Tokyo, and the First National Bank of Canada.
The purchaser and successor developer is Venetia (Kenpier) Partnership, a Florida general partnership. (Ken and Pierre compound into Kenpier.)
In January 1991, the new owners obtained a new second mortgage. The $6 million loan reveals that debts now far exceed the acquisition cost for The Grand.
The purpose of the loan was not disclosed by the borrowing partner‑ship’s principals Heafey and Arsenault. Cash flow problems brought about by misjudgment of the venture’s progress is possible. The placement of second mortgages is also a technique used by investors to protect holdings against foreclosure.
Placing a second mortgage requires the second-mortgage lien to be satisfied before a takeover can be forced by subsequent lien holders.
The secondary lenders are Les Placements Riviere Gatineau Incorporee and Les Jardins De La Montagne Inc. Officials of these two firms include Pierre Heafey and Kenny Arsenault.
Venetia (Kenpier) Partnership negotiated to purchase up to 300 residential units at The Grand from Venetia Holding Partnership. The first mortgage continues to be held in favor of Venetia Holding Partnership Ltd. as representative of the three banks.
Venetia (Kenpier) Partnership sells at a profit up to 300 residential condominium units in The Grand to The Grand Limited Partnership.
The Grand Limited Partnership offers for sale to Canadian investors “up to 300 limited partnership units in The Grand Limited Partnership.”
Kenpier Investment Limited manages the 300 units and receives 6% of the gross rental income as management fee.
The sales of the residential units are aimed at Canadians as a second home, according to Pierre Heafey. Guaranteeing purchasers one dollar per square foot rental income, Heafey envisioned to sell out quickly. Very quickly.
The impressive seven-point list of guarantees offered to those who participate in the real estate syndication project identifies the following:
· RENTAL GUARANTEES FOR FIVE (5) YEARS
ZERO % VACANCY for the next five (5) years. This is not a first tenant guarantee but a guaranteed rental income for the duration of this package.
· CASH FLOW GRANT (NO OPERATING DEFICIT) FOR FIVE (5) YEARS
We are so confident that our projections will become reality that in the event the rental revenue is insufficient to cover operating expenses (excluding principal repayment on the first mortgage), we will pay the difference!
· CASH FLOW LOAN FOR FIVE (5) YEARS
We will guarantee your cash flow for the next five (5) years via an interest-free loan. This loan will cover the portion of principal paid on your first mortgage.
· MORTGAGE RATE GUARANTEE: 8% FOR FIVE (5) YEARS
We will provide qualified investors with a first and second mortgage at a combined effective rate of 8% for five (5) years.
· MINIMUM CASH INVESTMENT
You can purchase a unit in The Grand for as little as $2,000 US down. There are no hidden costs and all legal fees are included.
· SECONDARY FINANCING
Secondary financing is arranged through a major lending institution. Different options are offered to each qualified investor, and loans are tailored to individual needs.
· PROFESSIONAL PROPERTY MANAGEMENT
We will manage your unit(s) for the duration of these guarantees and provide you each year with independently audited reports for tax purposes. We will also file the necessary documents with the U.S. tax authorities for the duration of the guarantee period.
Though Heafey touts the Miami apartments as second homes for Canadians, packaged with Canadian tax shelter benefits, the tax benefits are based on income from renters. With a zero percent vacancy guarantee from the rental program, only Miami residents — not the Canadian owners — will be able to enjoy living in the apartment. The Canadian owners may never sleep a single night in their second home.
Units selling in a range from $129,900 to $204,900 are offered for less than a two percent down payment with U.S. based mortgages. That’s no typographical error (typical down payments for U.S. mortgages call for twenty percent and require the loan applicant to certify owner occupancy instead of using the loan proceeds to purchase investment property that’s rented to others).
Unrelated to and preceding the Heafey tax shelter project, some 30 Canadian tax shelter purchases at The Grand in 1989 are presently in foreclosure by Carteret Bank.
Jeffrey Miller, project director of The Grand for both developers, the Bank of New York and the Heafey group, drew the conclusion that “in five years there will hardly be any value left and they may just walk away.”
Based on the guarantees offered above and backed by the deep pockets of the first mortgage holder bank troika, the project should have received enthusiastic attention from Canadian investors. Sales, however, have been slow. If these guarantees do not continue, massive foreclosures may be in the offing, flooding the market with luxury apartments.
To date, nearly 160 limited partnership units have been sold in Canada since the offering date of October 29, 1990. The Miami sales office has sold 40 apartments for the Heafey group.
The Bank of New York and the Canadian promoter face a challenge from the condominium’s residential unit owners — many of whom have invested their life savings — because those who purchased apartments as a home do not want The Grand to become a rental building.
Heafey is aware of the homeowners’ sentiment and therefore placed significant value on the makeup of the condominium association’s board of directors and association member voting power in order to carry out his plans.
Facing angry homeowners at a meeting of residents, Heafey admitted, “We bought based on the existing condo documents.” He made it clear to the property owners and renters present that he would resist any change in the control of The Grand.
The Canadian promoter plans to use the Bank of New York’s money with the protection from the condominium bylaws to turn the condominium into a short-term luxury rental vacation paradise for Canadian citizens.
With the Canadians’ “second home” occupied by Miami renters, Heafey, in actuality, has another lucrative business going: his The Grand Prix hotel puts up the vacationers in hotel rooms and condo apartments, calling the latter Suite The Grand Luxe and charging $250 per night.
The almost daily scene in the lobby of The Grand condominium gives more the impression of Grand Central Station. Tourists with their suitcases jam the entrance to the bank of elevators intended for the exclusive access to the residential apartments upon spilling out of buses or waiting for the return trip to the airport.
The Heafey-Arsenault team set up separate Florida corporations to own the hotel (PH Hotel, Inc.) and the retail space (PH Retail, Inc.) with no intention of relinquishing control over the condominium association to the residential unit owners.
Special assessments are becoming a necessity to cover, among other extraordinary expenditures, unexpected repairs.
One such item is the air conditioning. The condenser water distribution system for the air conditioning is normally installed for a life expectancy of some 35 years. During a twelve-months period, more than 100 repairs were necessary; and the system has had only four years of use. Here’s the clincher: repairs are carried out at the unit owners’ expense instead of the developer who should be held responsible.
Other construction defects are quietly covered with dirt and pretty plants. What was originally a waterfall on the tenth floor, adding the pleasant sound and sight of cascading water to the majestic atrium, has fallen silent. Dealing with a severe leakage is more easily (and less expensively) wrestled with by shutting off the short-lived amenity, the developer concluded.
A major problem affecting The Grand dwellers is parking. The city of Miami issued a certificate of occupancy for the building with a severe parking shortage. With less than one parking space for each of the 910 residential units, residents face a major crisis when the building is fully occupied.
Meanwhile, 286 parking spaces are owned by the developer, generating healthy cash in come from rental to commercial tenants.
These parking stalls are also classified as condominium units with four valuable votes to block any notion by residential dwellers to gain a majority for conducting association affairs.
Referring to the problems at The Grand, attorney Christopher Davies is quoted in The Miami Tribune: “There’s a major problem in terms of what the city did in waiving their rights to adequate parking.” Davies was a member of the Florida Condominium Study Commission which issued a report with recommendations for changes to the state condominium law.
The problem was conveniently, easily, and inexpensively ‘solved’ on April 8, 1987 when the City of Miami accepted from the developer a “Covenant Restricting Parking Facilities.”
With the stroke of the pen and at a total cost of typing a one-page letter, the developer dodged the need of spending millions on building the additional parking spaces to satisfy the law.
On November 2, 1990, Lourdes Chauvet, the unit owners’ representative on the board of directors, addressed a letter to Jeffrey R. Miller, president of The Grand Condominium Association, Inc. and Alan R. Griffith, president of The Bank of New York.
“We are concerned as to the mandatory valet parking imposed on the owners and tenants and the elimination of storage spaces.
The owners purchased the rights to assigned parking and storage spaces. The actions being taken by the developer and its agents are directly in breach of such rights vested in the owners. In addition, only recently (around mid-September, 1990) we were informed of the existence of a certain covenant of parking that was agreed upon between the original developer and the City of Miami on April 8, 1987. It appears that it was just an agreement of convenience in order to receive the certificate of occupancy at the time. We believe that the developer should, in good faith, pursue certain preconditions outlined in the covenant before imposing the valet parking. In addition, we believe the condominium documents given to the buyers were defective inasmuch as this covenant of parking was not included in those documents. This constitutes a failure to disclose material facts affecting title to the property.”
“We further demand that the mandatory valet parking be canceled and other more acceptable and permanent solutions be studied by the developer,” she concluded.
There was no response from anyone. Mandatory valet parking is now in effect. A significant percentage of the monthly maintenance fee represents the expense for operating the juggernaut valet parking system.
The zealousness of the developer looking out for himself is not only hidden in the cavernous parking garage; it reaches from top to bottom. At the top are two condominium units, complete with all voting privileges afforded its owner, the developer. The units with rights equal to those the home owners have is the rooftop with one marked difference: moneys collected from antenna space leases go into the developer’s pocket, not to the condo association for the benefit of the residential unit owners.
On the other hand, space of the broom-closet variety owned by the developer which does not generate cash income was deeded to the condominium association. The association did not have to pay for this acquisition. Neither will the association be able to collect monthly maintenance fees from the previous owner.
The Bank of New York and their agents (bank depositors’ money at work) took exception to the publishing of a magazine, The Grand Lifestyle, that reported the truth about deplorable conditions and unprofessional management practices financed and condoned by the New York bank. The publisher was attacked and copies of the magazine were removed clandestinely from the lobby as fast as they were placed for distribution to residents. The bank and its agents stood by and did nothing to prevent or stop these illegal acts. Is the public banking institution afraid of the truth getting out?
Lulled into believing they will one day control their homes as promised in the condominium documents, residential condominium buyers exercised patience and compassion because the big day when their homes would belong to them and would be under their control will surely come. Unfortunately, no one told them, and they did not figure on the developer having no intention of selling the moneymaking part of this multi-use complex.
When a management contract was forced upon the residents of The Grand with outrageous terms and price tag, homeowners became angry. Kenneth Neumann, a residential unit owner, referred to the proposed management agreement as the “most outrageous document I’ve ever seen.”
“Where is your professionalism?” he asked George Berlin, the association’s board member who is also president of the company proposing the management services. “Professionalism? Bull …,” Mr. Neumann said angrily.
Mrs. Chauvet, the first residential unit owner representative on the condominium association’s board of directors has been the target of malicious attempts to discredit her. She was also blamed for lack of cooperation when it came to voting at the three-member Board of Directors’ meetings.
The developer-controlled board went to extremes by calling a special meeting of the association’s members (using association funds) in an attempt to force her resignation and to elect a new unit owner representative. Only the support of fellow homeowners prevented a coup d’etat.
“The overwhelming response from home owners, renters and staff members made me realize that the support I need to be an effective representative on the Board of Directors is getting stronger,” Mrs. Chauvet confirmed her commitment in a letter to serve The Grand residents and staff.
She spearheaded projects of utmost importance to all residential unit owners — a petition with the Division of Land Sales, Condominiums and Mobile Homes of the State of Florida to establish that the valet parking is not a common expense that can be validly charged to the condominium owners as part of the maintenance fees and the partitioning of The Grand Condominium Association to separate the residential unit owners from the commercial and retail interests.
“For that reason I shall continue to help make The Grand the home we all can be proud of,” the iron-willed Grand dweller tried to motivate her fellow residents and to serve notice on the developer who, as Mr. Heafey stated, “will fight” to prevent the partitioning.
Apathy on the part of the unit owners and lack of unity played into the hands of the developer. The petition and the partitioning efforts withered.
Mercedes Dessau, another residential unit owner, accused the Board of Directors of wasting her time. “It’s futile,” she said. “My time is valuable.”
“Why go through this charade; we’ll never have a vote,” she told the audience at an association meeting, referring to the allocation of directors in the bylaws that assign two directors to the residential units, two each to the commercial and retail units, and specify one at-large director. She reminded the audience that the best the residents could hope for are three votes out of a total of seven.
Ms. Dessau addressed George Berlin, member of the Board of Directors and president of Turnberry Management Corporation (hired by the Bank of New York and subsequently by the Canadian group to manage The Grand and act as sales agent): “The resident unit owners will never have control. Is that true?”
Mr. Berlin answered, “Yes, ma’am.”
The many occupants of The Grand are divided over many issues. At the top of the list are those affecting (control over the) quality of life and the (control over the) investment value of apartments.
Those who believe in hiding the truth about key problems affecting The Grand do so for various reasons:
‘Family’ problems should stay inside the building and should be solved by the ‘family’.
The value of our apartments will go down if problems become public and we won’t be able to sell at a profit.
What problems? Everything’s just wonderful.
Is The Grand family solving problems? Who is the family?
What is more important, the quick and easy profit today or building lasting value for the future?
Problems are best prevented. And if they arise will be less costly to cure if dealt with sooner rather than later.
Apathy is blindness. And blindness causes suffering because danger is not seen. There are telltale signs that the future health of residential ownership is in jeopardy.
Two examples (one brought on by an unforeseen act of nature, the other is the act of man’s quest for profit) should convince every residential unit owner that it is in their best interest to take a stand today.
Why would the condo association not rush to repair Hurricane Andrew damage and protect the unit owners’ pocketbooks against devastating, needless drain? Jury awards in negligence lawsuits are known to reach astronomical heights.
Balcony railings blown away left gaping holes, which will bring certain death to whoever steps onto such unsafe balcony and looses his or her foothold.
The shocking truth is that the railings gave way because their anchorage goes but an inch into the foundation, leaving less than a reasonable (and code-specified) opportunity for the cement base to hold onto the metal-framed glass railings.
Are repairs put off by the decision not to spend the money now?
Why? (A one million dollar deductible on present insurance coverage leaves the responsibility to the condo association.)
Is the board (remember who controls it!) dodging cash outlays and another special assessment today by knowingly accepting the risk of exposing all units to huge liabilities in the future?
Security director Brendan Grubb, questioned in the elevator by a resident why the atrium air conditioning is still not repaired nearly three months after Hurricane Andrew knocked it out of service, explained “That’s what the owners want.”
The question is, which owners is he speaking for and — most importantly — which owners does Mr. Grubber pledge his loyalty to? Is it the owner who controls the security chief’s job security or those owners he’s pledged to serve and reassures with a false sense of safety and security.
Residential unit owners who have repeatedly asked — to no avail — for correction of blatant security shortcomings in the building have lost faith in The Grand security.
How is the future value of residential ownership affected by mortgage companies’ decision not to finance residential condo ownership because the residential structure is tied into a commercial enterprise and the democratic condo decision-making process is rendered non-existent by the commercial unit owners’ absolute control over the association’s board of directors?
Jason Winder of Home Savings of America worked diligently to approve a mortgage applicant. Then, however, a reversal spelled disappointment for the credit-worthy mortgage candidate. The lender, a major company for home financing, will not risk its money on condominiums not controlled by their owners and where commercial condo association members can easily manipulate the budget and all aspects of condo life.
What does it take to shock the unit owners out of complacency?
Must tragedy strike first and the ultimate price of complacency be borne by one? When will the people of The Grand right the wrongs that sooner or later must be corrected anyway and paid for? Who will pay the price? Should it be an innocent accident victim who gives his life and the residential unit owners who must give hard-earned life savings? Or should it be those who created and all along managed The Grand for profit. The Bank of New York, for one, won’t wait forever to accept responsibility.
Has Venetia Kenpier, knowing of the balcony construction exposed by Hurricane Andrew, disclosed the problems to prospective buyers of apartments?
The Grand resident Peter Carrier, a successful real estate broker, is being persecuted by the Heafey group without letup.
In the summer of 1992, Carrier and wife Nikki were blocked by the condominium association from moving into their new apartment and then sued by Venetia Kenpier Partnership for eviction from the building that had been their home since April 1991.
With their belongings already moved to their new home, the Carriers were obliged to sleep on the floor for more than a month.
The Miami Superior Court came to the rescue when it ordered The Grand Condominium Association “to provide Peter A. Carrier and his family immediate access to Unit 3534 for the purpose of peaceful habitation and enjoyment of said Unit.”
The persecution has not ceased. The latest harassing tactics against Carrier are accusations he is conducting business in a residential building.
Carrier has vowed not to buckle under the powerful terror tactics of the Heafey team and accuses the Venetia Kenpier group, led by Gino Falsetto, of selective and discriminatory enforcement tactics.
The Heafey sales organization has permitted numerous parties to take up residence in the building as buyers and renters, who in turn conduct business in The Grand. The Venetia Kenpier people, however, claim no knowledge of residents living at The Grand with their blessing who are conducting business. Challenged by the Heafey people to provide a list of violators, Carrier is obliged to document all business activities in The Grand as part of his defense against the discriminatory tactics of the Heafey group and Heafey-controlled condo association.
Heafey’s friends are protected from harassment; they even get free promotion paid for by the condo association. Has the condo association demanded that Ron Samter who lives in unit 4232 stop conducting business in The Grand? No.
On the contrary, on condo association letterhead over Director of Security Brendan Grubb’s signature, a letter was mailed to all The Grand residents. On the back of the letter appeared a letter on Ron Samter Associates, Real Estate Investments, letterhead identifying as the licensed real estate broker’s business address the Samter residential unit 4232 on the building’s top floor. Is that equality under the law?
Carrier feels that his outperforming the Venetia Kenpier sales staff with professional services that have become recognized as outstanding by those who have been helped by the personable broker contributes to the Heafey efforts to put him out of business.
The people controlling the building deliberately obstruct mail delivery service to residents who take a stand against their wrongdoings. Removing the resident’s name from the mailbox or misleading the postal Carrier with the falsehood that the resident has moved away are two examples.
Week after week (it’s been routine for so long, no one appears to consider it unacceptable), residents complain about lost U.S. mail.
Much of the mail gets tossed onto a wall-mounted table outside the mailroom where anybody can pick and choose. Management does nothing to protect what may be valuable to the resident addressee.
Those in control of The Grand also interfere in the efforts of residents not toeing their line who try to communicate with neighbors. For example, at condo association expense, manager Fernando Dominguez sent a notice to all residents advising that a party for the children of the building organized by parents is “not authorized by the Board of Directors of The Grand Condominium Association, Inc. nor is the Association affiliated in any way with this function.”
Another example: Harassment is also aimed at Lourdes Chauvet who stood up for the rights of the unit owners. In a letter to all residents, she urged everyone to attend the annual meeting of the condominium association and to exercise their right to vote. Her letter was delivered to the residents by two teenage volunteer enthusiasts. She also made a plea to help the homeless (after more than four months of no action by the association management and the developer, despite lip service to the contrary). The response from those in charge is documented in her letter of resignation from the board of directors to the president of the association.
“Abuse of power, lack of respect and common decency, failure to exercise basic courtesy, and blatant shunning of customer service were rampant throughout my year of service on the board,” the frustrated condo dweller wrote.
“I endured and exercised restraint. But when grown men in positions of authority abuse their power, terrorize two 12-year-old girls to get at me [the teenagers were intercepted and threatened by a resident, building security, and the condo manager], then I say, `Enough is enough.’ Those little girls didn’t deserve the harassment by a fellow resident (he’s old enough to be their grandfather), willingly and unhesitatingly supported by the manager who’s in charge of setting the supreme example for our staff of what fair customer service should be all about.”
“What is even sadder than the harassment inflicted upon the young girls is management’s deliberate sabotage of my volunteer efforts to help the homeless. I was forced to abandon my work of encouraging fellow residents to contribute to a most worthwhile cause.”
The response from the president, management, or the Lord and Master? None. Utter silence. The condo association manager returned checks from residents who wanted to help with the message: we don’t collect money for the homeless.
However, at the expense of all residents (paid from the association budget), the association delivers self-serving, commercial messages and permits association management/developer friends to slip sales pitches under the door.
There’s no record that such actions were “authorized” by the board of directors. Flyers from restaurants and other business establishments that find their way under the doors of apartments are not followed by stern messages of rebuke from condominium manager Dominguez: “Pizzas and Fettuccini Alfredo are not authorized by the Board of Directors of The Grand Condominium Association, Inc. nor is the Association affiliated in any way with this function.”
“It’s tyranny,” a frustrated resident remarked and asked not to be identified for fear of retribution.