v. (2013)

The Interstate Land Sales Full Disclosure Act (“ISLA”), 15 U.S.C. § 1701 et seq., “protects individual buyers or lessees who purchase or lease lots in large, uncompleted housing developments, including condominiums, by mandating that developers make certain disclosures.” Bacolitsas v. 86th & 3rd Owner, LLC, 702 F.3d 673, 676 (2d Cir.2012). The question presented in this appeal is whether a single-floor condominium unit in a multi-story building is a “lot,” thus triggering ILSA's protections. See 15 U.S.C. § 1703(a)(1) (statutory requirements apply to the “sale or lease of any lot” that is not otherwise exempt).

The Consumer Financial Protection Bureau (“CFPB”) and the Department of Housing and Urban Development (“HUD”)—the agencies presently and formerly charged, respectively, with administering ILSA 1—have defined the term “lot” to mean “any portion, piece, division, unit, or undivided interest in land located in any state or foreign country, if the interest includes the right to the exclusive use of a specific portion of the land.” 12 C.F.R. § 1010 .1(b).² As relevant here, the CFPB and HUD have consistently maintained that this definition applies to condominium units, including single-floor units in multi-story buildings. In particular, the CFPB and HUD have interpreted the phrase “exclusive use of ․ land” to mean exclusive use of realty, see, e.g., CFPB Letter Br. at 6, thus concluding that the statutory term “lot” applies to condominiums,³ because they “carry the indicia of and in fact are real estate,” Land Registration, Formal Procedures, and Advertising Sales Practices, and Posting of Notice of Suspension, 38 Fed.Reg. 23,866, 23,866 (Sept. 4, 1973).

We hold that the CFPB and HUD have reasonably interpreted their own definition of the term “lot.” Accordingly, the United States District Court for the Southern District of New York (Frederick P. Stamp, Jr., Judge of the United States District Court for the Northern District of West Virginia, sitting by designation) properly granted summary judgment to the plaintiffs. We also hold that the District Court did not err or “abuse its discretion” by awarding attorneys' fees.

BACKGROUND

The facts in this case are straightforward and undisputed. In 2007, plaintiffs-appellants Bruce and Nancy Berlin (jointly, “Berlin”) contracted to purchase a condominium unit on the sixteenth floor of The Residence at The Ritz–Carlton, Westchester—a building then under construction in White Plains, New York—from the developer, defendant-appellee Renaissance Rental Partners, LLC, and its principal, defendant-appellee Louis R. Capelli (jointly, “Renaissance”). Two years later, and before title was transferred, Berlin renounced the agreement and demanded a full refund of the $167,625 deposit. Berlin argued that the contract was voidable because Renaissance had not furnished a “printed property report,” as required by 15 U.S.C. § 1703(a)(1)(B).⁴ When Renaissance refused the rescission and denied the refund request, Berlin brought this suit pursuant to 15 U.S.C. § 1709, which provides a right of action “at law or in equity against a developer or agent if the sale or lease was made in violation of section 1703(a) of this title.” Id. § 1709(a).

Applying principles of agency deference, the District Court granted summary judgment to Berlin in a memorandum decision and order dated April 27, 2012. See Berlin v. Renaissance Rental Partners, LLC, 09 Civ. 8477(FPS), slip op. at 8–12 (S.D.N.Y. Apr. 27, 2012) (“Dist.Ct.Op.”). The Court explained that the agency definition of the term “lot” does not reveal “any intention to limit the application of ILSA to ‘horizontal’ condominiums, and to exclude high-rise or ‘vertical’ condominiums.” Id. at 8. Because “ ‘condominiums carry the indicia of and in fact are real estate,’ “ id. at 10 (quoting 38 Fed.Reg. at 23,866), the Court continued, “the proper focus regarding the analysis of whether a unit has exclusive rights to the use of land under 24 C.F.R. § 1710.1 is whether the purchase of the unit gave the purchasers the exclusive right to a unit, or any type of ‘realty,’ “ id. (referencing Winter v. Hollingsworth Props., Inc., 777 F.2d 1444, 1448 (11th Cir.1985)). Finally, the Court noted the marked absence of “an opinion by any court which has found that ILSA is inapplicable to any type of condominium, much less a high-rise condominium in particular.” Id. at 14.

Also relevant to this appeal, the District Court's decision and order partially granted Berlin's motion for attorneys' fees by awarding fees incurred “from the date of this Court's memorandum decision and order denying the defendants' motion to dismiss on August 19, 2011 until the date of this memorandum decision and order .” Id. at 15. In support of its decision to award fees, the District Court explained that Renaissance's argument that the condominium unit was not a “lot” within the meaning of ILSA “had been all but foreclosed by other case law interpreting ISLA.” Id.

On appeal, Renaissance asserts that ownership of a condominium unit in a multi-story building does not include the right to “the exclusive use of a specific portion of the land,” 12 C.F.R. § 1010.1(b), because the term “land” refers to the “tangible surface of the earth,” Appellants' Br. 14. Renaissance also contests the District Court's decision to award attorneys' fees.

After receiving the parties' briefs, we invited the CFPB, which did not participate in the District Court proceedings, to submit a letter brief offering its views. The CFPB responded by letter brief on March 12, 2013, explaining, in part:

HUD explained when it promulgated the definition of “lot” in 1973 that “condominiums carry the indicia of and in fact are real estate.” 1973 Rule, 38 Fed.Reg. at 23866. Accordingly, “the proper focus regarding the analysis of whether a unit has exclusive rights to the use of land under 24 C.F.R. § 1710.1 is whether the purchase of the unit gave the purchasers the exclusive right to a unit, or any type of ‘realty.’ “ [Dist. Ct. Op. at 10.] In that regard, the preamble to the 1973 Rule makes clear that a condominium is “equivalent to a subdivision, each unit being a lot.” 38 Fed.Reg. at 23866 (emphasis added). Because the condominium unit is itself a lot for purposes of ILSA, a purchaser of the unit need not have a separate interest in “raw land” to be entitled to the protections of ILSA's disclosure and anti-fraud requirements.

․ As HUD explained in 1973, the “application of [ILSA] to condominiums has been consistent [HUD] policy since the issue was first raised in 1969”—the year that ILSA took effect. 1973 Rule, 38 Fed.Reg. at 23866; see ILSA § 1422, 82 Stat. at 599 (effective date provision).5 HUD consistently reaffirmed that determination in subsequent guidance documents. See, e.g., 40 Fed.Reg. at 47166 (“For jurisdictional purposes, a condominium ‘unit’ is a ‘lot.’ ”); 1996 Guidance, 61 Fed.Reg. at 13596 (stating that the definition of “lot” applies to the “sale of a condominium or cooperative unit”)․

․

․ Appellants argue that the 1973 regulation, by using the term “land,” was intended to apply only to condominiums that were “horizontal developments and ․ campgrounds,” Br. 7 (quoting 1973 Rule, 38 Fed.Reg. at 23866), and not “condominiums where purchasers have [only] exclusive use of their ‘unit,’ “ ibid. That argument is contradicted by contemporaneous HUD statements that demonstrate its understanding that ILSA applies to multistory condominium developments. In the preamble to the 1973 rule, HUD made clear that ILSA would apply to “condominiums intended as primary residences in metropolitan areas” that did not qualify for the two-year construction exemption. 1973 Rule, 38 Fed.Reg. at 23866. As the district court found, HUD's discussion of condominiums “in metropolitan areas” reflected its view that ILSA's protections extend to purchasers of “high-rise or ‘vertical’ condominiums.” [Dist. Ct. Op. at 8.] Indeed, less than six months after issuing the 1973 Rule, HUD removed any doubt on the matter by issuing guidelines designed to accommodate “the realities of condominium construction, especially high-rise construction.” 1974 Guidance, 39 Fed.Reg. at 7824 (emphasis added). The 1974 Guidance thus makes clear that the term “lot” is not confined to “horizontal developments” and “campgrounds.”

․ Appellants argue (Br.13) that the definition of the term “land” used in 24 C.F.R. § 1710.1 is determined by New York state property law, which they claim defines “land” to exclude “structures or improvements constructed on the land.” As this Court observed, however, ILSA creates “a national standard to guarantee full disclosure for the benefit of prospective buyers.” Bacolitsas, 702 F.3d at 682 (emphasis added). ILSA's national reach requires that the meaning of the federal regulatory term “land” be determined under federal law.

CFPB Letter Br. at 6–7, 10–11. The CFPB also participated in oral argument.

DISCUSSION

A.

The only merits dispute at issue in this appeal is whether a single-floor condominium in a multi-story building “includes the right to the exclusive use of a specific portion of the land,” 12 C.F.R. § 1010.1(b) (emphasis supplied), thus qualifying as a “lot” within the meaning of ILSA. We review this legal question de novo. See Maslow v. Bd. of Elections in N.Y.C., 658 F.3d 291, 295–96 (2d Cir.2011).

The consistent and longstanding view of the CFPB, HUD, and all courts that have considered this issue is that a single-floor condominium unit in a multi-story building is a “lot” within the meaning of ILSA when ownership of the unit includes the right to exclusive use of the unit. “It is well established that an agency's interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Nw. Envtl. Def. Ctr., ––– U.S. ––––, ––––, 133 S.Ct. 1326, 1337, ––– L.Ed.2d ––––, –––– (2013) (internal quotation marks omitted). We conclude that the interpretation by the CFPB and HUD of their own regulation is reasonable and therefore warrants deference.

In common usage, the term “land” brings to mind the surface of the earth. In legal parlance, however, “land” can have a different meaning. The term “land” is sometimes used to mean “[a]n estate or interest in real property,” a concept that “ ‘is not restricted to the earth's surface, but extends below and above the surface.’ “ Black's Law Dictionary 955 (9th ed.2009) (quoting PETER BUTT, LAND LAW 9 (2d ed.1988)). Moreover, ownership of “land,” in this technical sense, does not require ownership of soil or other physical matter tied to the earth. “ ‘Ultimately, as a juristic concept, “land” is simply an area of three-dimensional space, its position being identified by natural or imaginary points located by reference to the earth's surface.’ “ Id. (quoting the same).

Inasmuch as “land” is sometimes used as a term of art referring to “real estate,” the CFPB and HUD have reasonably concluded that their own definition of “lot” applies to a condominium unit in a multi-floor building. Condominium ownership had only emerged in the continental United States in the 1960s,⁶ but by the time HUD promulgated its definition of “lot” in 1973, the agency was already applying ILSA to sales of condominium units on the basis that those units are real estate. As HUD explained at that time:

The application of the Act to condominiums has been consistent OILSR 7 policy since the issue was first raised in 1969. The bases for this position are that condominiums carry the indicia of and in fact are real estate, whether or not the units therein have been constructed. A condominium is accordingly viewed by OILSR as equivalent to a subdivision, each unit being a lot. Adverse comment, particularly from builders, asserts that condominiums are equivalent to houses and the sale of houses was not intended to be covered by the Act. However, the right to condominium space is a form of ownership, not a structural description. This condominium concept is employed as an ownership form for completely horizontal developments and even for campgrounds. Congress recognized the need to exempt professional builders from the Act and provided an appropriate exemption [in 15 U.S.C. § 1702(a)(2) ]. For a condominium unit sale to be exempted from the Act, it must accordingly qualify for exemption; i.e., either it must be completed before it is sold, or it must be sold under a contract obligating the seller to erect the unit within two years from the date the purchaser signs the contract of sale.

38 Fed.Reg. at 23,866. In other words, a right to exclusive use of a condominium unit is a right to exclusive use of real estate, and therefore a condominium unit—whether in a multi-story building or even in “completely horizontal developments” and “campgrounds”—is a “lot” within the meaning of ILSA.⁸

The relevant agencies—originally HUD and now the CFPB, see note 1, ante—have consistently maintained this understanding ever since the issue was first raised in 1969. See, e.g., CFPB Letter Br. at 5–13; 61 Fed.Reg. 13,596, 13,602 (1996 HUD Guidance) (“lot” includes “a condominium or cooperative unit”). Congress has at least implicitly recognized that interpretation. See Winter, 777 F.2d at 1449 n. 12 (“Congress did more than acquiesce in HUD's longstanding interpretation; Congress took specific action in 1978 to exempt the sale of some condominiums from the Act's scope,” implying “that, absent such an exemption, [ILSA] must apply to the sale of condominiums.”). And courts, too, “have consistently held that a ‘condominium unit’ constitutes a ‘lot.’ “ Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 127 F.3d 478, 481 (6th Cir.1997). Finally, this interpretation accords with the text and purposes of ILSA. As the Court of Appeals for the Eleventh Circuit explained:

[ILSA] was intended to curb abuses accompanying interstate land sales. The Act accomplishes that goal by including within it all sales of lots and then exempting a number of transactions, including sales of fully improved property. It is reasonable to conclude, as HUD did, that the term “lot” was used to refer generally to interests in realty. The legislative history supports this construction, employing the terms “lot,” “land,” and “real estate” in discussing the Act. This construction is also reasonable in terms of the purpose of the statute. A fraudulent out-of-state sale of land is not rendered any less fraudulent if the condominium form of ownership is utilized.

Winter, 777 F.2d at 1448. For these reasons, we defer to the agency rule defining “lot” and to the consistent and longstanding agency understanding that this rule applies to single-floor condominium units in multi-story buildings when ownership of those units includes the right to exclusive use of those units.⁹

On appeal, Renaissance has not asserted any other defense to Berlin's action to revoke the contract pursuant to 15 U.S.C. § 1703(c), see note 4, ante, and we therefore affirm the District Court's grant of summary judgment to Berlin.

B.

Renaissance also argues that the District Court erred or “abused its discretion” by awarding attorneys' fees to Berlin. Before reaching the merits of this claim, however, we must address Berlin's argument that we lack appellate jurisdiction to consider the District Court's fees award because Renaissance filed a premature notice of appeal—after the entry of judgment ordering an award of particular costs and fees, but prior to the District Court's actual calculation of that award amount.¹⁰

In the circumstances of this case, we have jurisdiction to review the District Court's decision to award fees.¹¹ It is true that “[a] non-quantified award of attorneys' fees and costs is not appealable until the amount of the fees has been set by the district court,” O & G Indus., Inc. v. Nat'l R.R. Passenger Corp., 537 F.3d 153, 167 (2d Cir.2008), and therefore Renaissance's appeal of the fees award was premature, see Fed. R.App. P. 4(a)(1)(A) (period for filing notice of appeal starts after entry of appealable order or judgment). Nonetheless, “a premature notice of appeal from a nonfinal order may ripen into a valid notice of appeal if a final judgment has been entered by the time the appeal is heard and the appellee suffers no prejudice.” Houbigant, Inc. v. IMG Fragrance Brands, LLC, 627 F.3d 497, 498 (2d Cir.2010) (quotation marks omitted). These two conditions have been met here. Following Renaissance's notice of appeal, the District Court amended the judgment to account for the fees amount, see note 10, ante, and we detect no prejudice to Berlin. Accordingly, we proceed to the merits of the decision to award fees. See, e.g., LaForest v. Honeywell Int'l Inc., 569 F.3d 69, 73 (2d Cir.2009) (“Because there is now an appealable final order regarding fees and costs, that order is ripe for review.”); Iberiabank v. Beneva 41–I, LLC, 701 F.3d 916, 920–21 n. 7 (11th Cir.2012).¹²

ILSA provides district courts with wide discretion in fashioning a suitable monetary award. According to the statute, “[t]he amount recoverable in a suit authorized by this section may include ․ interest, court costs, and reasonable amounts for attorneys' fees, independent appraisers' fees, and travel to and from the lot.” 15 U.S.C. § 1709(c). The statutory authorization that a district court “may” award attorneys' fees “ ‘clearly connotes discretion,’ “ Martin v. Franklin Capital Corp., 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)), and we therefore review a district court's decision whether to award attorneys' fees under ILSA for abuse of discretion, see Barbour v. City of White Plains, 700 F.3d 631, 634 (2d Cir.2012) (“We review a district court's award of attorneys' fees for abuse of discretion.”); see also In re Sims, 534 F.3d 117, 132 (2d Cir.2008) (a district court abuses its discretion if it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render [s] a decision that cannot be located within the range of permissible decisions” (internal citation and quotation marks omitted)).

In this case, the District Court acted well within its discretion by awarding attorneys' fees. In its careful and well-reasoned memorandum decision and order, the Court reasonably and correctly concluded that it has been the longstanding and unanimous view of the CFPB, HUD, and various courts that ILSA can apply to condominium units in multi-story buildings. See Part A, ante. To be sure, Renaissance's legal argument is not frivolous; the term “land” can, in some contexts, refer specifically to the earth's surface, and prior to this opinion we had not yet ruled directly on this question. But ILSA does not limit fee awards to circumstances where a defendant's legal position was entirely without merit. Cf., e.g., Martin, 546 U.S. at 138 (rejecting an argument that a discretionary fees provision should only apply “on a showing that the unsuccessful party's position was ‘frivolous, unreasonable, or without foundation’ ”). We think it is enough, as the District Court explained, that the question presented “was far from an emerging or unexplored issue, but had rather been all but directly disallowed by HUD and courts within and outside of [the Southern District of New York] and [Second Circuit].” Dist. Ct. Op. at 14. In other words, Renaissance was on notice that the condominium unit at issue was a “lot” within the meaning of ILSA. On this basis, the District Court exercised reasonable judgment by concluding that Berlin should be compensated for its attorneys' fees.

CONCLUSION

To summarize:

(1) We afford agency deference both to the rule promulgated by the Consumer Financial Protection Bureau and the Department of Housing and Urban Development defining the statutory term “lot,” and to those agencies' consistent and longstanding interpretation of that definition as applying to condominium units in multi-story buildings.

(2) In light of this settled agency interpretation, as well as the unanimous view of courts that have considered the same issue, we also conclude that the District Court did not err or “abuse its discretion” by awarding attorneys' fees to the plaintiffs.

Accordingly, the judgment of the District Court is AFFIRMED.

I respectfully dissent.

The Berlins contracted to purchase unit 16D in one of the residential condominium towers of the Ritz–Carlton Hotel in White Plains. After the market crashed in 2008, they demanded rescission of the $1.34 million contract and return of their deposit, citing the Interstate Land Sales Full Disclosure Act (the “Land Sales Act”), 15 U.S.C. §§ 1701 et seq., which allows buyers in certain land transactions to seek rescission and a refund if the seller failed to make pre-sale filings and disclosures. The primary issue in this appeal is whether the Land Sales Act applies to this transaction. (The Berlins are certainly not invoking equity.)

I

The statute and its implementing regulation make clear enough that the Act governs only transactions in land (whether the interest is fee simple, a condominium, or a leasehold). See 15 U.S.C. § 1703(a)(1); Land Registration, Formal Procedures, and Advertising Sales Practices, and Posting of Notices of Suspension, 38 Fed.Reg. 23,866, 23,876 (1973) (codified at 24 C.F.R. § 1710.1). The Land Sales Act regulates only “the sale or lease of any lot.” 15 U.S.C. § 1703(a)(1). The Department of Housing and Urban Development (“HUD”) promulgated a regulation in 1973—which remains in force—that defines a “lot” as “any portion, piece, division, unit, or undivided interest in land ․ if the interest includes the right to the exclusive use of a specific portion of the land.” 24 C.F.R. § 1710.1(b) (emphasis added).

HUD, which appeared amicus by brief and at oral argument, supports the Berlins, and relies chiefly on its interpretive pronouncements (and its own “intent”) to expand the regulatory scope so that HUD can regulate transactions in high-rise condominium units that do not sit on “land” and that are therefore not “lots.”¹ I decline to “give effect to a reading of [the] regulations that is not the most natural one, simply because [the agency] says that it believes the unnatural reading is right.” Decker v. Nw. Envtl. Def. Ctr., ––– U.S. ––––, ––––, 133 S.Ct. 1326, 1339, ––– L.Ed.2d ––––, –––– (2013) (Scalia, J., dissenting).

The only way to read the Land Sales Act and the implementing regulation is that the Act applies only to the sale (or lease) of a lot that, by definition, includes a right to use of land that is exclusive. An exclusive right is one that excludes all others. For example, each owner in a gated community of condominiums or townhouses may have a unit that sits on land from which land the owner can exclude all the world. That is not so with Apartment 16D. Unless a condominium unit sits upon land, some portion of which is land reserved exclusively to the use of the owner, it is not a “lot” within the meaning of the statute and implementing regulation.

A condominium by definition entails both an exclusive right to use a unit and a non-exclusive right to use common areas. See, e.g., Black's Law Dictionary 336 (9th ed.2009). So if a condominium unit sits on its own exclusive parcel of land, it is a “lot” notwithstanding that, within a development or gated community, there are amenities such as roads, clubhouses, pools, and sports facilities that are held in common by all the unit owners. By the same token, a condominium unit that is a slice of a multistory residential building cannot be a “lot” of “land” within the meaning of the statute and governing regulation. What the Land Sales Act regulates is property that is or includes an exclusive interest in land; how that interest is held, whether a fee simple, a leasehold, or a condominium (for example), does not bear upon the scope of regulation.

When a condominium unit is a horizontal slice of a high-rise residential building, the owner of each unit has an exclusive right to her own unit only, without any exclusive right to use of a lot on land. This is easily demonstrated. Land entails rights above and below the surface (subject of course to covenants and zoning); but the owner of 16D cannot build up or down, because (at the risk of being obvious) that expansion would oust the unit owners of 15D or 17D. Apartment 1D may be at the plane of the land, but its owner likewise cannot build up or down-so that, if (hypothetically) 1D has an exclusive outdoor patio, the owner has no right to build up from it, let alone mine it or drill for oil.

At oral argument, counsel for amicus HUD argued that the very word “land” is itself “ambiguous.” True, the word “land” has its nuances; so it can be said that unit 16D is “on land” as opposed to “at sea,” or “in orbit.” But the word is not ambiguous in the context of the Land Sales Act and the governing regulation. Whether what is sold is a “lot” of “land” can be grasped by any child. We look to plain meaning, and few words have a meaning as plain as “land.” Textual ambiguity cannot be manufactured by efforts of litigants and bureaucrats to distort, misunderstand, and overreach.

Relying on the purported ambiguity of the word “land,” the majority opinion accedes to HUD's view that “exclusive use of land” actually means “exclusive use of realty.” Maj. Op. at 3. The majority opinion quotes Black's Law Dictionary 955 (9th ed.2009): “[t]he term ‘land’ is sometimes used to mean ‘[a]n estate or interest in real property,’ a concept that ‘is not restricted to the earth's surface, but extends below and above the surface.’ “ Maj. Op. at 8. True, the right to use “land” typically includes use of the air above and the earth below; but it also surely includes use of the surface. An “interest” in land may be limited to use above (air rights) or below (drilling rights), but the holder of such rights who does not also have use of the surface cannot be said to have “exclusive use” of the “land,” which is the defined scope of the Land Sales Act.

The fuller text of that definition (set out in the margin² ) reflects that land is “immovable” and “indestructible.” Given that land is indestructible, it cannot be multiplied (or demolished). It is proverbial that they are not making any more of it. That is why a twenty-story building on a one-acre footprint does not constitute twenty acres of “land”; and at oral argument, HUD refused to say that it does, although that is the absurd conclusion compelled by HUD's interpretation. However broad the definition of land, there is no reasonable basis for HUD's contention that the term “land” includes any interest that may have “indicia of real estate.” See Maj. Op. 8.

The definition of plain words should reveal meaning, not drain it, or explode it. Congress used the word “lot,” and the regulation defines “lot” as an interest that includes the “exclusive use of ․ land.” 24 C.F.R. § 1710.1(b). HUD issued “guidance” that says the word “land” includes condominiums because they “carry the indicia of and in fact are real estate.” 38 Fed.Reg. at 23,866. The majority opinion endorses the claim that the “exclusive use of land” means “exclusive use of realty.” Maj. Op. 3. But if “land” means any “realty,” we are led into a rabbit hole, because “realty” can also be defined as “property,” see Black's Law Dictionary 1379 (9th ed.2009), and “property” is defined as “the right to possess, use, enjoy a determinate thing,” which in turn is “[a]ny external thing over which the rights of possession, use, and enjoyment are exercised,” id. at 1335–36. That is not a useful process of definition.

II

Extension of the Land Sales Act to high-rise condominiums by administrative fiat is, as demonstrated, untenable as a textual matter. This was no drafting error by Congress: the text is drawn to reach the evils that Congress wished to curb, and those evils did not include subjecting the Berlins to life at the Ritz–Carlton in Westchester.

The Act targeted deceptive and fraudulent sales of undeveloped lots of land, transactions which (in the 1960s) were often carried out by mail or by telephone. Promoters duped unsuspecting people, often senior citizens, into purchasing, sight unseen, “land in swamps, deserts, high arid plateaus, mountains, remote valleys, jungles and lava beds.” Note, S. 275—The Interstate Land Sales Full Disclosure Act, 21 Rutgers L.Rev. 714, 714 (1967); see also Frauds & Quackery Affecting the Older Citizen: Hearing Before the Senate Special Comm. on Aging, 88th Cong. 203 (1963) (Statement of J. Fred Talley, Ariz. State Real Estate Comm' r) (referencing home-sites “so far from anywhere” that “a jackrabbit would need a canteen to get there”); id. at 183 (Statement of Sen. Goldwater, Member, Senate Special Comm. on Aging) (describing “land swindles” in Arizona where so-called “subdivisions” had no water, and in some cases, no roads or power).

President Johnson endorsed the Act because some senior citizens had “wasted much of their life savings on a useless piece of desert or swampland.” To Protect the American Consumer—Message from the President of the United States, H.R. Doc. No. 57, 90th Cong., 1st Sess., reprinted in 113 Cong. Rec. 3527, 3529 (Feb. 16, 1967). Shortly after its passage, the Supreme Court confirmed that the Land Sales Act was “designed to prevent false and deceptive practices in the sale of unimproved tracts of land.” Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776, 778, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976) (emphasis added).

The proper scope of the Act is illustrated by HUD's own disclosure requirements. HUD's regulations specify that in the property report (required by Section 1707 of the Land Sales Act) developers must disclose to buyers whether “oil, gas or mineral rights have been reserved” by the developer. 24 C.F.R. § 1710.109(b)(4). Likewise, the property report must describe the “general topography and the major physical characteristics” of the land. Id. § 1710.115(a); see also id. (requiring developer to disclose whether “any lots in the subdivision have a slope of 20% or more”); id. § 1710.115(b)-(c) (requiring developer to disclose whether the lot is “covered by water” and whether the lot requires “draining or fill prior to being used”). However, since unit 16D has no subterranean resources, no slope, no wetlands, and no topographical features of any kind, such disclosure—like the Act itself—has no application to it.

III

At oral argument, counsel for HUD pressed us to recognize “HUD's intention.” However, it is the intent of Congress that matters, not that of the agency. We defer to an agency only because it is presumed to have expertise in filling gaps that Congress left open, not because it has ambition to expand the limited scope of regulation Congress confided to it. See Decker, 133 S.Ct. at 1340 (Scalia, J., dissenting) (“The implied premise of this argument-that what we are looking for is the agency's intent in adopting the rule—is false.”).

HUD does not seek deference to the Land Sales Act or to HUD's 1973 regulations; together, they actually foreclose HUD's argument. HUD is demanding deference to its own overreading of the regulatory preamble, which says that “condominiums carry the indicia of and in fact are real estate whether or not the units therein have been constructed.” 38 Fed.Reg. at 23,866 (emphasis added). But HUD's argument begs the question whether the preamble is referencing a condominium that has exclusive use of land and is thereby on a lot . Insofar as HUD construes this guidance in a way inconsistent with its regulations, we owe it no deference. See Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).

True, the agency's reading of its own regulations need not be the best one, see Maj. Op. at 7–8; but even if the word “land” were ambiguous, HUD's interpretation of the word is gravity-defying, literally. The majority emphasizes that HUD has “consistently maintained this understanding ever since the issue was first raised in 1969.” Maj. Op. at 9. But a misunderstanding is not improved by consistency.

The majority opinion adopts the arguments made in HUD's letter to this Court, which cites chiefly to HUD's self-serving guidance. See HUD Br. 10. Twenty years after the regulation at issue was promulgated, the Office of Interstate Land Sales Registration (“OILSR”) purported to “streamline” the land sales registration program, and offered interpretive guidance as to some of the Land Sales Act's exemptions. See Federal Housing Commissioner; Interstate Land Sales Registration Program; Streamlining Final Rule, 61 Fed.Reg. 13,596, 13,596, 13,602 (1996). This guidance could not alter the regulation, let alone the statute itself. Indeed, the self-limited goal of the guidelines accompanying the “streamlining” was to clarify the scope of certain exemptions: “This is an interpretive rule, not a substantive regulation.” Id . at 13,601.

OILSR's streamlining guidelines defined a “lot” as “any portion, piece, division, unit, or undivided interest in land if such interest includes the right to the exclusive use of a specified portion of the land or unit. This applies to the sale of a condominium ․ as well as a traditional lot.” Id. at 13,602 (emphases added). HUD and the Berlins now rely on this “guidance” to support their expansive view, see HUD Br. 4, 9–10; but we owe no deference to HUD's interpretive guidance if it contradicts the statute and HUD's own regulation. See Auer, 519 U.S. at 461.

In any event, this streamlining would not delink coverage under the Land Sales Act from land itself, because it is altogether unclear what, if anything, it adds. The 1973 regulation defines “lot” as any portion, piece, division, or unit of land (or undivided interest in land), if—and only if—the portion, piece, division, unit, or undivided interest includes the right to “exclusive use of a specific portion of the land.” 24 C.F.R. § 1710.1(b). The 1996 guidance adds “or unit” to the second clause, which HUD argues expands coverage of the Land Sales Act to any “unit” that includes exclusive use of that unit.³ That reading is untenable. The natural way to read this addition—sloppy and incoherent as it is—is that a unit of land is a “lot” if it includes the right to exclusive use of that unit of land. That much was already clear from the 1973 regulation.⁴

HUD's ipse dixit that the definition of lot “applies to the sale of a condominium” also adds nothing. See 61 Fed.Reg. at 13,602. It goes without saying that condominium ownership (like a fee or leasehold) is one way to hold a lot of land. So the Land Sales Act may of course apply to the sale of a condominium unit on a lot of land. But it does not follow that it applies to all property held in condominium form.⁵

Although it plainly defined “lot” to require the exclusive use of “land,” HUD jumbles together its various semi-literate guidelines and interpretations to expand its regulatory reach. The argument that HUD spins from its “guidance”—and that the majority opinion adopts—rests uneasily on a classic false syllogism: Land is real estate; all condominiums are real estate; therefore, all condominiums are land.

JOSÉ A. CABRANES, Circuit Judge:

Chief Judge JACOBS dissents in a separate opinion.