My experience with business owners is that their relationship to real estate is the second most important aspect of their business: they need the right location, the correct amenities, and the zoning and facilities that meet the needs of their business. They also need the right deal: is it a lease, and if so, short-term or long term? Is it full-service or triple net? Should they buy, and if so, how is it financed, can they lease to others, and how is the contract structured. I have provided timely counsel in a broad array of real estate transactions for buyers and sellers, landlords and tenants.
A commercial real estate buyer will need guidance in the contract formation, financing, study period and closing spheres, even the vocabulary of the commercial real estate transaction can be daunting: “estoppel certificates”, “phase I environmental” and “incumbency certificates” are almost certain to be required, but what are they? A Buyer will need to consider the many of the following aspects of their deal: Letter of Intent drafting, early planning for financing and land use (zoning), entity for acquisition, exclusivity and confidentiality. Once at the contract stage, there are vital additional elements: duration and scope of a study period, contingencies for land use, financing, HVAC and roof inspections, tenant mix and leases among many considerations. As closing approaches, the commercial buyer is given a long list of tasks– the Closing Checklist– by the buyers’ lender. Almost every buyer needs assistance with the matters on the list: establishing corporate existence and the resolutions needed to authorize the transaction, obtaining and checking the insurance certifications, making sure that the note, the Deed of Trust and the guaranties are all properly drafted, and more importantly, having a thorough understanding of the importance of each document.
The commercial seller faces similar contract formation issues, and a similarly long list of tasks preparing for closing, as well as additional sellers’ considerations: limiting liabilities that may arise in the future or those that may linger from the past. Obtaining tenant estoppel certificates that properly meet the terms and conditions of the lease, and handling security deposit transitions. Some sellers may be willing to provide some seller-financing, in which case the seller’s loan documents: note, deed of trust guaranty, financing statements, collateral lease assignments, all have to be drafted, executed and recorded, as required, after closing.
Invariably, problems arise, and it is the lawyer’s job to work creatively and collaboratively with the client, the other stakeholders (buyers, sellers, banks, title insurers, estates and governmental agencies) in order to get the deal done. I take pride in my ability to identify issues, identify them early and work towards solutions in a commercially efficient manner.
For commercial landlords and tenants, the lease is the most vital aspect of their relationship. A properly-drafted lease sets the foundation for the relationship, and tries to anticipate problems, and their solutions, before they occur. Clients are often puzzled by the length and density of commercial leases, but underlying the many pages is this fact: experienced real estate lawyers have seen a variety of problems in leasing relationships, and they try to provide cover for their clients in the commercial lease. Who insures the tenant property form a fire or rain damage? Who is responsible for HVAC repairs, broken glass or vandalism? What if there is a government “taking of Landlord’s property under eminent domain? Who is responsible for insuring tenant’s trade fixtures, and what happens if the bank forecloses on the landlord? A good commercial lease covers all of these topics, and many more.
Commercial landlords may be tempted to use off-the-shelf (or off the internet) forms rather than engage in the expense of a lawyer to draft a proper commercial lease; and in the same fashion, commercial tenants may save a few hundred dollars by forgoing a lease review by a qualified real estate lawyer. Among lawyers there are many stories of the client who saved a few dollars going in, and spent thousands of dollars in litigation or related expenses trying to resolve a problem not addressed, or understood, in a commercial lease. In these deals, the up front dollars are much cheaper than those at the end.
Many real estate professionals are successful entrepreneurs in their own right, while they operate under the flag of a brokerage, they are responsible for all of their listings, all of their sales, and producing 100% of their income. Many brokerages provide only the thinnest layer of legal guidance, and often don’t provide it where the professional needs it most: preparing and interpreting a traditional contract or contract clause; assessing zoning for a particular use; developing and understanding the elements of a letter of intent; assistance with sophisticated commercial leases, understanding conflicts of interest, when and how it is best to get the other side represented by a capable lawyer who won’t kill the deal, among many other matters. Brokerages are often not equipped to provide the real estate professional with the tools need to assist clients in resolving title matters, or matters that flow from real estate controlled by an estate.
I come from a family of builders, developers, brokers and real estate managers, and am sensitive to the needs of real estate professionals. I also own commercial real estate of my own. I have worked with many agents, brokers, appraisers, real estate tax professionals; this history and experience gives me a unique ability to advise professional on all sides of the real estate transactions about how best to get the deal done.
I inherited a piece of property from my parents and I want to sell, but my brothers and sisters want to hold onto it. My ex-boyfriend and I own real estate, and he’s not paying his share of the mortgage. My neighbor has an “easement” over part of my land, and he wants to use it. My landlord won’t repair a leak in the roof that is hurting my business. I want to sell my property but the title search shows a title defect, and they tell me that there is an estate from a prior owner that needs to be opened and closed in order to transfer title.
These are just a few of the many complex real estate problems that my clients and I have had to consider. I look forward to speaking with you about how we can work together and resolve your complex real estate matter.
Call Steve Awalt at 443-275-5404 or contact me online to schedule a consultation.
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