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In today's economic environment managing risks in Real Estate lending is increasingly more difficult. Establishing the value of the realty collateralizing the loan is more akin of shooting at a moving target. The continual decline in property values is only one factor that increases the risk for lenders, another factor in these trying times in the financial soundness of the borrower. The financial stability of individuals is under continual pressure for borrowers due to the economic crisis as unemployment rates rise and credit scores drop. Like a house of cards and individual's ability to meet his/her credit obligations can tumble overnight.  

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The decline in real estate prices is not only affecting lenders and borrowers but also state and local governments whose property tax base is quickly losing value. All across the country local and state governments are looking for ways to crimp their budgetary shortfalls. Departments are being asked to look for ways of increasing their revenue sources. Of particular interest to risk managers is the step-up of code enforcement activities seen in most major municipalities. With the decline in new construction nationwide many building and zoning departments are expanding staff duties to include code enforcement.  Instead of laying them off to cut expenses government maintains personnel by increasing revenue streams from fees for services and fines. In some places violation fees can quickly escalate if not addressed to the tens of thousands of dollars.  

Code violations ride with the property and become the responsibility of the new property owners whether they created the violation or not. For the borrower making an investment in a home regardless of it being a market rate, short-sale, or foreclosed property, a major code violation or the cost of legalizing an illegal addition can be prohibitive thus seriously decreasing the value of the property and increasing the risk of the real estate loan. Many borrowers simply do not have the necessary financial resources to address serious violations or repairs unseen at the time of purchase resulting in default.  

Banks have relied on a property appraisal by state licensed companies that they trusted as the way of establishing the value of the asset. The typical residential appraisal relies on one of two methods for determining value, the cost approach and the direct sales comparison approach.  

1.     Cost Approach - In this approach, the replacement cost of the building and improvements is estimated, estimated depreciation is deducted, and the value of the site is added.

2.     Market Data or Direct Sales Comparison Approach - The essence of this approach is to determine the price that similar properties have sold for recently on the local market and, through an appropriate adjustment process, to estimate the fair market value of the subject property based on these comparable sales.

Both have serious flaws in the current market. Current real estate prices in many parts of the country are lower than what it would cost to build the structure without considering the cost of land or depreciation leaving appraisers to give land negative values or use other adjustments to meet values arrived at by the sales comparison approach. Additionally these appraisals do not consider unseen code violations or illegal additions not disclosed by the seller and that appear to be legal at first glance leaving open a tremendous hidden risk potential for the lender. Appraisers are not always schooled in architecture or engineering or construction and are unable to determine the value of a structure based on undisclosed structural inadequacy, zoning code violations, encroachments, or illegal additions that might appear to be legal.

The lack of a comprehensive assessment of physical needs that includes not only the condition or expected life of the structure but also deficiencies and above all zoning violations leaves the buyer and equally important the lender at risk of buying into a property that will lose its value if found to be in violation with local laws.

 Governments are stepping up in places like Miami Dade County, Florida. A recent law effective April 1, 2009 requires that a "Disclosure of Findings" report must be prepared by a Registered Architect and recorded in with the "Clerk of the Courts" for bank owned properties (REO) prior to offering the property for sale. When the report is approved and filed the county issues a "Certificate of Use" for the property.  

The "Disclosure of Findings" report is prepared upon completion of an inspection by the architect. The inspection determines if there are any code violations, inadequacies or other illegal or life threatening conditions not usually spotted during a conventional home inspection or appraisal of the property. The report includes an estimate by the architect of what costs are to be expected to correct deficiencies. When the service is properly performed, an architect will search historical zoning records and codes to determine what requirements were applicable to the property when it was built. It is not sufficient to judge the legality of a structure based on current codes and ordinances since codes have changed over time.  

The spirit of the law is "consumer protection" but clearly it offers the county an additional income stream not only from filing fees but also from violation fees and new permit fees. Banks lending on properties with a Disclosure of Findings report have found an added level of security. More lending institutions are implementing similar inspection requirements on properties they are lending on and passing the cost of the inspection to the buyer much like the conventional inspection paid by the buyer. These inspections in Florida can also be used to satisfy the required insurance inspections commonly required by providers. The net result to the consumer is minimal considering the added security of the investment received and potential savings in insurance premiums.   

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