Remember the viral story about the "poor door" that a New York developer was fighting to construct so that wealthy residents in the new building would not have to rub elbows with, or even see, the residents in the required affordable units on lower floors? It may not always be the case in residential developments where below-market-rate units are required, but it's well known in the real estate community that such units are typically not as nice as the units sold or rented at market rate, typically do not have the same views, and in the case of the multi-million-dollar, Whole Foods-adjacent 35 Dolores, BMR-unit lottery winners have allegedly not been allowed to move into their units many months after the rest of the building has been finished and occupied.

According to Ryan Fay, a real estate agent with Zephyr representing one of the BMR buyers, his client was supposed to close on her unit over two months ago when the developer, Lightner Property Group, "decided to conduct destructive testing in the BMR units. This testing is being done to remedy the problems created by their poor design or construction and to make sure the market-rate buyers were not inconvenienced."

The building, according to an anonymous resident there who spoke to SFist, was found to have water-intrusion problems in the open-air common areas in the central core — a problem the developer was made to solve post-construction and after the majority of market-rate residents had moved in. To this resident, given that the problem was confined to the common areas, the ploy about needing to conduct testing in all of the BMR units seems disingenuous. His theory is that the developer has been shady specifically because he's needed to maintain control of the homeowners' association (HOA) during this whole construction remedy process.

"The BMR units are complete and remain vacant and owned by the developer. As a result, the developer can control those votes and influence the HOA," says the source. "The developer also delayed formation of the HOA by an additional 30 days to retain control when the HOA should have been in control."

But as Fay says, these delays, whatever is causing them, are creating a hugely unfair burden for his client, who is not a high-income individual and has had to take on extra costs "from rescheduling movers, to ensuring she had a place to live while the developer corrected their errors, to having to pay to have documents redrawn." He adds that the developer has once again pushed back his client's move-in date, now necessitating that she pay for a mortgage-rate lock, something that will cost over $2,000.

Fay explains that if this were a normal transaction, his client would have the option to just walk away from the deal. But, "Since this is a BMR transaction, my client has used every dollar she has for the downpayment and to make this move possible. Additionally, she won a lottery to get this unit. Therefore walking away is not a possibility, and the developers know this. Although they have made millions in profits, they are unwilling to reimburse my client for the cost they have caused her to incur."

And, obviously, Fay took the case to the media precisely because of how unfair it is. "I used to be a civil rights attorney... so this really gets under my skin. Additionally, my business partners and I strongly support affordable housing for all San Franciscans and we strongly support the city's BMR program."

Is this case more the exception than the rule? Probably not, though it does sound like it's been exceptionally complicated, and difficult. "This developer has been awful to deal with through the transaction, as if closing this BMR unit was some kind chore," says Fay, even though the one-bedroom units here were starting at $800,000 and the two-bedrooms have sold for well over asking, with this one going for $1.55M last October, likely helping turn a more than tidy profit. And, as is the law in San Francisco, this developer would not have gotten approval for the project were it not for the inclusion of the BMR units.

We've reached out to the developer for comment on the situation, and when the BMR buyers may be allowed to occupy their units, and will update this post with any response.

Update: Fay informed us as of Monday that the developer had, in fact, agreed to pay the extra costs incurred by his client.

But after the publication of this article we received another update from a different BMR lottery winner at 35 Dolores, Claudia Vasek. She says, "[It's been a] really interesting, incredibly stressful and slow process. I still don't have final approval for the purchase, this is after 3 1/2 months of paperwork from the Mayor's office and the bank. Many levels of gratefulness yet frustration involved. If there is one thing I've learned, is that [for-sale] BMR units are NOT for low-income San Franciscans and the term 'affordable' means different things depending on your own financial situation."

Update 2: Yet another BMR reached out to SFist, this one preferring to remain anonymous, noting that she has had a similarly difficult experience trying to close on a first-floor unit. "There was an 'apparent' attempted break-in into my unit. I say 'apparent' because I can not get confirmation from anyone about what actually happened- they says that is 'appears' that someone tried to break in and the people I have talked to say they do not know when it happened. I know it happened at least a month ago because when I heard about the delays in closing due to the 'water testing' work in the BMR units that you mention in the article, I already noticed the smashed glass door and a sign posted saying 'DANGER do not enter.' Shortly after the only market-rate ground-floor unit received a glass enclosure for added security, but the BMR ground floor units have not, despite my unit already having an attempted break in. I have asked the Lightner group several times about getting an enclosure for 102 and they never responded to my inquiry. In addition, I was supposed to close mid-July on my unit, but it seems that the developer just discovered the attempted break-in last week, despite the 'DANGER do not enter' sign being posted there for over a month. They just last week began the work to replace the door, which has to be shipped from Italy, so my closing date is now being pushed to mid-September. I had to sign an addendum to my contract because it expired 120 days after signing, and my guaranteed interest rate will expire Aug. 2 so that has the potential to go up as well."

Update 3: Two days later I receive the following response from developer William Lightner:

I am Bill Lightner, native San Franciscan (Sunset District) and CEO of Lightner Property Group, which my wife and I started out of our spare bedroom in 1984.

Editor Jay Barmann states, “We've reached out to the developer for comment on the situation.” Though he did, his email hit my inbox three minutes AFTER he posted his story. Why a journalist would fail to verify facts prior to publication is a question he needs to answer. [Editor's note: I did, in fact, reach out before publication, have the email timestamp to prove it, and it took two days to get this response from Mr. Lightner.]

Self-proclaimed former “civil rights attorney” Fay... failed to check his facts saying, “This testing is being done to make sure the market-rate buyers were not inconvenienced.” Despite his rhetoric, the timing of BMR sales and closure was delayed by a bureaucratic process well beyond our control. Though inconvenienced, BMR buyers - unlike the market-rate buyers, did not have to suffer repairs after occupying their new homes. For the record, Fay refused to personally meet with me.

The story states, “this developer would not have gotten approval for the project were it not for the inclusion of the BMR units.” In fact, we could have paid an in-lieu fee instead of providing BMR homes in this building; but as the son of a San Francisco car mechanic, I voluntarily included homes for these folks in our building.

Despite inaccurate and inflammatory blogging, Lightner Property Group will continue to earn our reputation for integrity, earned for over thirty-one years of operation.