- 28 - disaster, the cluster home would revert to petitioner without repurchase by petitioner, but the owner received the insurance proceeds. Additionally, petitioner controlled whether it would be obligated to repurchase through its power to grant or deny permission to convey the property. This "obligation" to repurchase was an advantage rather than a disadvantage in that petitioner, by selling the cluster homes itself, reaped the difference between the repurchase amounts and the higher resale prices. Where petitioner repurchased cluster homes and resold them, petitioner received all of the profits; this tends to weigh against the transactions' being sales. However, while the cluster home or condominium owner did not receive the benefit of any appreciation in the fair market value of the unit, the owner was assured of receiving at least 76 percent of the original purchase price. In the event that the real estate market for retirement homes collapsed, petitioner could bear any loss. Thus, petitioner and the owner each had both a benefit and a detriment in the repurchase arrangement. While the cluster home or condominium owner had to forgo the benefit of possible appreciation, he or his estate was assured of receiving at least 76 percent of his original purchase price, an assurance that aging members of a retirement community might find attractive, particularly compared to the usual church-sponsored retirement communities that required large, nonrefundable upfront payments. Some of the above aspects of this transaction support petitioner's proposed characterization while others support respondent's. Under these circumstances, we believe that thePage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011