Due to the COVID-19 state of emergency, the NYS Department of Law, Real Estate Finance Bureau has issued a policy memorandum temporarily revising submission requirements for condominium and cooperative offering plans and amendments. This should help provide limited relief to both REF and sponsors. REF intends for the relief period to remain in effect as long as New York Executive Order Number 202 Declaring a Disaster Emergency in the State of New York remains in effect. Highlighted below is basic information regarding the temporary policies and procedures during the relief period.
Sales After Expiration of the Term of the Offering Plan During the relief period, REF does not intend to pursue enforcement actions against sponsors or principals based solely upon the marketing or sale of units/apartments/homes pursuant to an expired or “stale” offering plan. Specifically, REF does not intend to commence new investigations of sponsors and principals for “stale sales” activity that occurred after the start of the relief period. Additionally, during the relief period, REF will not consider a sponsor’s marketing or sale of units/apartments/homes pursuant to an expired or “stale” offering plan to be an act triggering a right of rescission for purchasers. Therefore, until further notice, sponsors do not need to submit amendments to REF that principally serve to extend the term of the offering plan (i.e., “financial update amendments”).
Price Change Only Amendments During the relief period, REF does not intend to pursue enforcement actions against sponsors or principals based solely upon the failure to file price change only amendments with REF prior to offering or selling units/apartments/homes at prices different than the most recently disclosed and filed offering price. Additionally, during the relief period, REF will not consider a sponsor’s failure to file a price change only amendment prior to offering or selling units/apartments/homes at prices different than the most recently disclosed and filed offering price to be an act triggering a right of rescission for purchasers. Therefore, sponsors are advised not to submit price change only amendments to REF until further notice.
Broker-Dealer and Salesperson Registration Statements During the relief period, REF does not intend to pursue enforcement actions against broker-dealers or salespersons based solely upon the failure to timely file a broker-dealer or salesperson registration statement or supplemental broker-dealer or salesperson registration statement with REF. Therefore, registrants are advised not to submit such documents to REF until further notice. Please note, however, that a broker-dealer registration statement is still required with the submission of a new offering plan or no-action letter application to REF during the relief period, as appropriate. Additionally, a new or supplemental broker-dealer registration statement is required with an amendment submission if there is a change to the sponsor or any of its principals.
Receipts for Broker-Dealer and Salesperson Registration Statements During the relief period, REF will not be issuing such PDF filing receipts. Rather, REF will send an email to the submitting attorney confirming that the broker-dealer or salesperson registration statement or supplemental broker-dealer or salesperson registration statement has been filed with REF. This email will serve as the “official” filing receipt during the relief period. Registrants who received an email filing receipt during the relief period will not receive a PDF filing receipt for their registration at any point in the future, including after the conclusion of the relief period.
Amendment Submissions and Broker-Dealer Registration Requirements During the relief period, REF temporarily is suspending its requirement that an accurate, complete, and current broker-dealer registration statement, or evidence thereof, be included with newly submitted amendments. However, a new or supplemental broker-dealer registration statement is required with an amendment submission if there is a change to the sponsor or any of its principals.
Form 99 Submissions During the relief period, REF does not intend to pursue enforcement actions based solely upon the failure to timely file a Form 99 with REF. Therefore, issuers are advised not to submit such documents to REF until further notice. However, any Forms 99 that were not filed during the relief period should be filed after the conclusion of the relief period. REF will provide a ninety-day grace period for issuers to do so.
Original Signatures and Notarized Documents During the relief period, REF will deem a photocopy or scanned copy of an original signature to be an original signature and thus will not require an original “wet ink” signature on any signed or notarized documents. However, REF reserves the right to request an original “wet ink” signature as it deems necessary. REF will also accept documents that are notarized in accordance with the parameters set forth in New York Executive Order Number 202.7.
Digital Distribution of the Offering Plan and Amendments During the relief period, REF (1) does not intend to pursue enforcement actions against sponsors or principals based solely upon furnishing purchasers with digital copies of the offering plan and/or amendments prior to submitting a CPS-10 application to REF, and (2) will not consider sponsors or principals furnishing purchasers with digital copies of the offering plan and/or amendments to be an act triggering a right of rescission for purchasers. Certain conditions need to be met.
Revisions to Submissions During the relief period, REF temporarily is suspending its right to require sponsors to submit a paper copy of revisions that are over twenty-five pages. Accordingly, REF requests that submitters send all revisions via email in lieu of mailing a paper copy. REF also requests that submitters do not mail to REF a courtesy paper copy of any revisions during the relief period. REF further requests that submitters who may have mailed paper copies of revisions or other documents to REF in the two weeks preceding the start of the relief period contact the REF staff member to whom the revisions or documents were sent to determine if the REF staff member received such documents. If not, please transmit such documents to REF via email.
Acceptance for Filing of Amendments, Issuance of No-Action Letters and Letters of No Objection to Termination of Condominium Declaration, and Granting of CPS Treatment During the relief period, REF is suspending until further notice its requirement for both a paper copy and a digital copy (on a CD-ROM, DVD, USB flash drive or external hard drive) of final amendments. Similarly, REF is suspending until further notice its requirement for a paper copy of final no-action letter applications, applications for letters of no objection to termination of condominium declaration and CPS applications. Therefore, sponsors are advised not to send the final paper copies of such documents to REF during the relief period. Instead, REF can accept such documents via email during the relief period. Please see Memorandum for further details.
Acceptance for Filing of Offering Plans During the relief period, REF is suspending until further notice its requirement for both a paper copy and a digital copy (on a CD-ROM, DVD, USB flash drive or external hard drive) of final offering plans. Instead, REF can accept an offering plan for filing via email during the relief period. The reviewing attorney assigned to a pending submission will provide the submitting attorney with instructions regarding the procedure for digital submission of final documents to REF. Upon the reviewing attorney’s receipt and review of the final documents, the reviewing attorney will email the submitting attorney indicating whether they have accepted the offering plan for filing. The reviewing attorney’s email acceptance will not be REF’s “official” offering plan acceptance letter. Rather, REF’s Records Management Section still must issue the “official” acceptance letter.
Cooperative Policy Statement Exemptions During the relief period, REF is suspending all of its CPS exemptions until further notice. Therefore, as of the date of this guidance document, REF will no longer accept for submission any applications pursuant to CPS-1, CPS-3, CPS-5, CPS-6, CPS-7, CPS-10, CPS-11 or CPS-12.
Policy Statement Exemptions During the relief period, REF is suspending all of its Policy Statements (“PS”) exemptions until further notice. Therefore, as of the date of this guidance document, REF will no longer accept for submission any applications pursuant to PS-100, PS-101, PS-102, PS-103, PS-104 or PS-105.
New Submissions to REF As of the date of this guidance document, REF does not have the ability to accept new submissions to REF digitally. Therefore, paper copies (and digital copies, as appropriate) of all new submissions still must be mailed to REF during the relief period. REF will continue to process such paper submissions during the relief period, but the processing of submissions may be delayed. Please be assured that REF currently is exploring the possibility of increased digital submission procedures and intends to provide an update in the near future. If REF’s submission policies prove impossible for a submitter due to current circumstances, please contact REF.
Correspondence with REF REF requests that all correspondence to REF be transmitted via email to the extent possible, as REF will have limited capacity to process incoming mail during the relief period. Similarly, please do not mail REF courtesy paper copies of any documents previously transmitted to REF via email.
Read the Temporary Submission and Review Policies and Procedures in full here.
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