Monthly Archives: January 2021

Negotiating Tips for Commercial Real Estate Transactions

Life’s Experiences, Lessons learned, Classes taken, Books and Articles read, and then summarized for your viewing pleasure in the following article on Commercial Real Estate Negotiating tips

  1. Don’t let contract negotiations go back and forth more than twice – the more back and forth, the harder it is to get a deal done. Round 1 and both are focused on the sale. Round 2 and the focus changes to money. When you get past Round 2 parties can begin to nitpick, start to resent each other and lose focus. Issues can then become personal.
  2. Focus on completing the sale. Don’t get sidetracked by emotions, unimportant details, unforeseen challenges or difficult situations that arise.
  3. Endeavor to put all contract offers and subsequent pertinent details in writing. This avoids the misunderstandings, misrepresentations and omissions that typically accompany verbal communications and lead to a breakdown in the process.
  4. When you give a concession, ask for something in return. You might not always get it but the fact that you’ve given in on an issue ought to give you the standing to ask for and often times receive something in return. Just by asking and not receiving you avoid the other side continuing to ask concessions of you and your Client.
  5. It’s best to not take the first offer too quickly or too easily. Wait at least a few hours. When talking about it with the other Agent don’t talk about the ease of getting the property under contract. The other side will immediately think they made a bad deal and from that point forward the closing process can become more difficult than it should be.
  6. If you get to an impasse, change the focus and resolve less complicated issues. Then go back to the difficult ones. The process will go smoother and once you have worked through the easy ones, momentum will help get things finished.
  7. If you aren’t sure how to reply to a request or if you know the answer but want to soften the blow, use the “limited authority” approach. “I’m not sure, let me check with my Partner”, or “Let me take a look at such and such data” so that you can better provide a more meaningful reply.
  8. In order to support your position, rely on precedent. Suggest that this is the way that issues like these are typically addressed or that you’ve done such and such before with great success.
  9. Ask the other side for something that isn’t critical to making the deal so that perhaps you can trade this item away for something more important to you.
  10. Negotiations are a process. It doesn’t matter how quickly you want things to move, the process will move based upon the comfort level of your Client. Maintain focus, but keep in mind that the process will most likely not move as fast as you want it to.
  11. Stay away from high pressure tactics including ultimatums, demands or anything that sounds final and/or threatening. Most of the time it doesn’t help and it can lead directly to emotional responses that then creates animosity.
  12. Work towards a win / win. In order to have a successful negotiation, both sides need to win on some points. Give and take. Strive to achieve most of your goals understanding that the other party is trying to do the same.
  13. Present all of the facts to your Client. It’s your fiduciary duty as a Realtor to apprise the Client of all related facts to the negotiations – good and bad. Don’t push for the higher dollar offer if other terms of the offer put the Client at undue risk.
  14. Remember who you are negotiating with. Sooner or later you’ll be back at the table again with the same Agent. Don’t burn any bridges by transacting in a less than professional manner.

Commercial Property Law Specialist

Buying or leasing a commercial property today can become hassle free only when the buyer knows their property law well. Even they are not familiar with the latest news they need correct legal advice. Our commercial property department is experienced in dealing with commercial property transactions including sales, purchases, assignment of leases, purchases of businesses of going concern and sales and lease back transactions. We provide commercial property solicitors for various different sales. One can get expert advice only with a specialized property lawyer. For property transfer we provide a Conveyancing Solicitor too. At Duncun & Lewis we have been assisting landlords and their clients to run business in harmony without any litigation.

Normally, real estate agents in areas recommend commercial property solicitors who they know. They know the area and are knowledgeable about the laws concerning related properties. Many businesspersons try to reduce the hassles by trying to circumvent legal hassles by only relying on the brokers’ advice. The title of the lease or plot has to be clear. But the right option is to engage commercial property solicitors for it. When you approach a commercial property solicitor at our firm they will take into account the compete details before any sale or purchase or any other transaction is made.

Too much emphasis is being given on the protection of the tenants now. A new code was introduced for leasing business premises in UK in March 2007. Sometimes lack of knowledge and not giving due importance to property lawyers can land businesses in trouble. For every negotiation, we make sure that property conveyancing is done easily, with able assistance from a conveyancing solicitor. A conveyance is a deed (legal document) that conveys a house from the vendor (seller) to the buyer, thereby transferring ownership. For transferring the property in the name of one person to another especially in business premises requires legal assistance. We take it to our credit that we have handled successfully, many such cases.

Consider a commercial property solicitor from our firm as an insurance policy against bad decisions. Property owners today do not want long-term tenants and this could mean that some tenants will protest. Tenants whose business depends on the volatile markets tend to take shorter legal routes. The lease term is important and we are aware of the technical issues faced by our clients. We charge reasonable fees but make sure you remain in business. This is our priority. If are looking for knowledgeable commercial property solicitors or conveyancing solicitors, log on to duncanlewis.co.uk. Find a wealth of information here apart from the best solicitors.

Commercial Property Management – Tenancy Schedule Tips Tools and Tactics

The tenancy schedule is the tool of choice for a property manager or leasing manager in a commercial or retail property investment. It is the tenancy schedule that will keep the property manager up to task on forthcoming events and dates.

Often you find that the tenancy schedule is not up to date, so if anyone gives you such a document, treat it with the caution it deserves, and check it out completely before you act on the information contained therein.

So let’s say that you have a great tenancy schedule that you know is totally accurate. I get many questions about what I would want to see in a tenancy schedule. Here are my main priorities:

  • Details of the tenant name, lease, and full contact detail for emergencies
  • Tenancy identifier or suite reference that comes from the plan for the property
  • The area of the tenancy in m2 or ft2 (depending on your unit of measurement)
  • The % of the tenant area to the building net lettable area
  • The rent $’s per annum, per month, and per unit of measurement (m2 or ft2)
  • Lease start date
  • Rent start date
  • Lease end date
  • Term of lease
  • Option term of lease
  • Anniversary dates and reminders for rent reviews, options, expires, renewals, renovations, and make good obligations
  • Outgoings charges for each tenant on the basis of area and monthly charge
  • Outgoings budget for the building
  • Total outgoings recoveries for the property on a currency and % basis
  • Types of outgoings to be charged to the tenants
  • Insurance obligations of the tenant
  • Rental guarantee details or bonds held
  • Provision for critical dates relating to any important lease term or condition
  • Maintenance obligation details of the tenants

This list is not finite and you can add your own extra priorities, I would however make sure that it is totally correct and maintain it to the highest level of accuracy. When you do this you can stay on top of important upcoming events that will impact the occupancy or rental of the property.

Whilst you can buy ‘off the shelf’ software programs that display this above information, that can be quite expensive for those commercial and retail property managers that are first entering this type of property. The alternative is to create some simple spread sheet that contains the data; in saying that, it is essential that great care is taken to maintain the spread sheet that you create. Any errors in the tenancy schedule can destroy your landlord, your business, your tenant, your reputation, and the property. Accuracy is paramount.

Due Diligence Checklists – For Commercial Real Estate Transactions

Planning to purchase or finance Commercial or Industrial Real Estate? Shopping Center? Office Building? Restaurant/Banquet property? Parking Lot? Storefront? Gas Station? Manufacturing facility? Warehouse? Logistics Terminal? Medical Building? Nursing Home? Hotel/Motel? Pharmacy? Bank facility? Sports and Entertainment Arena? Other?

A KEY to investing in commercial real estate is performing an adequate Due Diligence Investigation to assure you know all material facts to make a wise investment decision and to calculate your expected investment yield.

The following checklists are designed to help you conduct a focused and meaningful Due Diligence Investigation.

Basic Due Diligence Concepts:

Commercial Real Estate transactions are NOT similar to large home purchases.

Caveat Emptor: Let the Buyer beware.

Consumer protection laws applicable to home purchases seldom apply to commercial real estate transactions. The rule that a Buyer must examine, judge, and test for himself, applies to the purchase of commercial real estate.

Due Diligence: “Such a measure of prudence, activity, or assiduity, as is proper to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances; not measured by any absolute standard, but depending upon the relative facts of the special case.” Black’s Law Dictionary; West Publishing Company.

Contractual representations and warranties are NOT a substitute for Due Diligence.

Breach of representations and warranties = Litigation, time and money.

WHAT DILIGENCE IS DUE?

The scope, intensity and focus of any due diligence investigation of commercial or industrial real estate depends upon the objectives of the party for whom the investigation is conducted. These objectives may vary depending upon whether the investigation is conducted for the benefit of (i) a Strategic Buyer (or long-term lessee); (ii) a Financial Buyer; (iii) a Developer; or (iv) a Lender.

If you are a Seller, understand that to close the transaction your Buyer (and its Lender) must address all issues material to its objective – some of which require information only you, as Owner, can adequately provide.

GENERAL OBJECTIVES:

(i) A “Strategic Buyer” (or long-term lessee) is acquiring the property for its own use and must verify that the property is suitable for that intended use.

(ii) A “Financial Buyer” is acquiring the property for the expected return on investment generated by the property’s income stream, and must determine the amount, velocity and durability of the revenue stream. A sophisticated Financial Buyer will likely calculate its yield based upon discounted cash-flows rather than the must less precise capitalization rate (“cap rate”), and will need adequate financial information to do so.

(iii) A “Developer” is seeking to add value by changing the character or use of the property – usually with a short-term to intermediate-term exit strategy to dispose of the property; although, a Developer might plan to hold the property long term as Financial Buyer after development or redevelopment. The Developer must focus on whether the planned change is character or use can be accomplished in a cost-effective manner. A developer conducting due diligence will focus on issues involving market demand, access, use and finances.

(iv) A “Lender” is seeking to establish two basic lending criteria:

1. “Ability to Repay” – The ability of the property to generate sufficient revenue to repay the loan on a timely basis; and

2. “Sufficiency of Collateral” – The objective disposal value of the collateral in the event of a loan default, to assure adequate funds to repay the loan, carrying costs and costs of collection in the event forced collection becomes necessary.

The amount of diligent inquiry due to be expended (i.e. “Due Diligence”) to investigate any particular commercial or industrial real estate project is the amount of inquiry required to answer each of the following questions to the extent relevant to the objectives of the party conducting the investigation:

I. THE PROPERTY:

1. Exactly what PROPERTY does Purchaser believe it is acquiring?

(a) Land?

(b) Building?

(c) Fixtures?

(d) Other Improvements?

(e) Other Rights?

(f) The entire fee title interest including all air rights and subterranean rights?

(g) All development rights?

2. What is Purchaser’s planned use of the Property?

3. Does the physical condition of the Property permit use as planned?

(a) Commercially adequate access to public streets and ways?

(b) Sufficient parking?

(c) Structural condition of improvements?

(d) Environmental contamination?

(i) Innocent Purchaser defense vs. exemption from liability

(ii) All Appropriate Inquiry

4. Is there any legal restriction to Purchaser’s use of the Property as planned?

(a) Zoning?

(b) Private land use controls?

(c) Americans with Disabilities Act?

(d) Availability of licenses?

(i) Liquor license?

(ii) Entertainment license?

(iii) Outdoor dining license?

(iv) Drive through windows permitted?

(e) Other impediments?

5. How much does Purchaser expect to pay for the property?

6. Is there any condition on or within the Property that is likely to increase Purchaser’s effective cost to acquire or use the Property?

(a) Property owner’s assessments?

(b) Real estate tax in line with value?

(c) Special Assessment?

(d) Required user fees for necessary amenities?

(i) Drainage?

(ii) Access?

(iii) Parking?

(iv) Other?

7. Any encroachments onto the Property, or from the Property onto other lands?

8. Are there any encumbrances on the Property that will not be cleared at Closing?

(a) Easements?

(b) Covenants Running with the Land?

(c) Liens or other financial servitudes?

(d) Leases?

9. Leases?

(a) Security Deposits?

(b) Options to Extend Term?

(c) Options to Purchase?

(d) Rights of First Refusal?

(e) Rights of First Offer?

(f) Maintenance Obligations?

(g) Duty on Landlord to provide utilities?

(h) Real estate tax or CAM escrows?

(i) Delinquent rent?

(j) Pre-Paid rent?

(k) Tenant mix/use controls?

(l) Tenant exclusives?

(m) Tenant parking requirements?

(n) Automatic subordination of Lease to future mortgages?

(o) Other material Lease terms?

10. New Construction?

(a) Availability of construction permits?

(b) Utilities?

(c) NPDES (National Pollutant Discharge Elimination System) Permit?

(i) Phase 2 effective March 2003 – Permit required if earth is disturbed on one acre or more of land.

(ii) If applicable, Storm Water Pollution Prevention Plan (SWPPP) is required.

II. THE SELLER:

1. Who is the Seller?

(a) Individual?

(b) Trust?

(c) Partnership?

(d) Corporation?

(e) Limited Liability Company?

(f) Other legally existing entity?

2. If other than natural person, does Seller validly exist and is Seller in good standing?

3. Does the Seller own the Property?

4. Does Seller have authority to convey the Property?

(a) Board of Director Approvals?

(b) Shareholder or Member approval?

(c) Other consents?

(d) If foreign individual or entity, are any special requirements applicable?

(i) Qualification to do business in jurisdiction of Property?

(ii) Federal Tax Withholding?

(iii) US Patriot Act compliance?

5. Who has authority to bind Seller?

6. Are sale proceeds sufficient to pay off all liens?

III. THE PURCHASER:

1. Who is the Purchaser?

2. What is the Purchaser/Grantee’s exact legal name?

3. If Purchaser/Grantee is an entity, has it been validly created and is it in good standing?

(a) Articles or Incorporation – Articles of Organization

(b) Certificate of Good Standing

4. Is Purchaser/Grantee authorized to own and operate the Property and, if applicable, finance acquisition of the Property?

(a) Board of Director Approvals?

(b) Shareholder or Member approval?

(c) If foreign individual or entity, are any special requirements applicable?

(i) Qualification to do business in jurisdiction of the Property?

(ii) US Patriot Act compliance?

(iii) Bank Secrecy Act/Anti-Money Laundering compliance?

5. Who is authorized to bind the Purchaser/Grantee?

IV. PURCHASER FINANCING:

A. BUSINESS TERMS OF THE LOAN:

What loan terms have the Purchaser, as Borrower, and its Lender agreed to?

(a) What is the amount of the loan?

(b) What is the interest rate?

(c) What are the repayment terms?

(d) What is the collateral?

(i) Commercial real estate only?

(ii) Real estate and personal property together?

(e) First lien? A junior lien?

(f) Is it a single advance loan?

(g) A multiple advance loan?

(h) A construction loan?

(i) If it is a multiple advance loan, can the principal be re-borrowed once repaid prior to maturity of the loan; making it, in effect, a revolving line of credit?

(j) Are there reserve requirements?

(i) Interest reserves?

(ii) Repair reserves?

(iii) Real estate tax reserves?

(iv) Insurance reserves?

(v) Environmental remediation reserves?

(vi) Other reserves?

(k) Are there requirements for Borrower to open business operating accounts with the Lender? If so, is the Borrower obligated to maintain minimum compensating balances?

(l) Is the Borrower required to pledge business accounts as additional collateral?

(m) Are there early repayment fees or yield maintenance requirements (each sometimes referred to as “pre-payment penalties”)?

(n) Are there repayment blackout periods during which Borrower is not permitted to repay the loan?

(o) Is there a Loan Commitment fee or “good faith deposit” due upon Borrower’s acceptance of the Loan Commitment?

(p) Is there a loan funding fee or loan brokerage fee or other loan fee due Lender or a loan broker at closing?

(q) What are the Borrower’s expense reimbursement obligations to Lender? When are they due? What is the Borrower’s obligation to pay Lender’s expenses if the loan does not close?

B. DOCUMENTING THE COMMERCIAL REAL ESTATE LOAN

Does Purchaser have all information necessary to comply with the Lender’s loan closing requirements?

Not all loan documentation requirements may be known at the outset of a transaction, although most commercial real estate loan documentation requirements are fairly typical. Some required information can be obtained only from the Seller. Production of that information to Purchaser for delivery to its lender must be required in the purchase contract.

As guidance to what a commercial real estate lender may require, the following sets forth a typical Closing Checklist for a loan secured by commercial real estate.

Commercial Real Estate Loan Closing Checklist

1. Promissory Note

2. Personal Guaranties (which may be full, partial, secured, unsecured, payment guaranties, collection guaranties or a variety of other types of guarantees as may be required by Lender).

3. Loan Agreement (often incorporated into the Promissory Note and/or Mortgage in lieu of being a separate document)

4. Mortgage [sometimes expanded to be a Mortgage, Security Agreement and Fixture Filing]

5. Assignment of Rents and Leases

6. Security Agreement

7. Financing Statement (sometimes referred to as a “UCC-1”, or “Initial Filing”)

8. Evidence of Borrower’s Existence In Good Standing; including

(a) Certified copy of organizational documents of borrowing entity (including Articles of Incorporation, if Borrower is a corporation; Articles of Organization and written Operating Agreement, if Borrower is a limited liability company; Certified copy of trust agreement with all amendments, if Borrower is a land trust or other trust; etc.)

(b) Certificate of Good Standing (if a corporation or LLC) or Certificate of Existence (if a limited partnership) or Certificate of Qualification to Transact Business (if Borrower is an entity doing business in a State other than its State of formation)

9. Evidence of Borrower’s Authority to Borrow; including

(a) a Borrower’s Certificate;

(b) Certified Resolutions

(c) Incumbency Certificate

10. Satisfactory Commitment for Title Insurance (which will typically require, for analysis by the Lender, copies of all documents of record appearing on Schedule B of the title commitment which are to remain after closing), with required commercial title insurance endorsements, often including:

(a) When available, Affirmative Creditors Rights Endorsement (extending coverage over policy exclusion 7 and policy exclusions 3(a) and 3(d) as they relate to creditor’s rights matters)

(b) ALTA 3.1 Zoning Endorsement modified to include parking

(c) ALTA Comprehensive Endorsement 1

(d) Location Endorsement (street address)

(e) Access Endorsement (vehicular access to public streets and ways)

(f) Contiguity Endorsement (the insured land comprises a single parcel with no gaps or gores)

(g) PIN Endorsement (insuring that the identified real estate tax permanent index numbers are the only applicable PIN numbers affecting the collateral and that they relate solely to the real property comprising the collateral)

(h) Usury Endorsement (insuring that the loan does not violate any prohibitions against excessive interest charges)

(i) other title insurance endorsements applicable to protect the intended use and value of the collateral, as may be determined upon review of the Commitment for Title Insurance and Survey or arising from the existence of special issues pertaining to the transaction or the Borrower.

11. Current ALTA Survey (3 sets), [typically prepared in accordance with 2011 Minimum Standard Detail for ALTA/ACSM Land Title Surveys, certified to the lender, Buyer and the title insurer.

12. Current Rent Roll

13. Certified copy of all Leases (3 sets)

14. Lessee Estoppel Certificates

15. Lessee Subordination, Non-Disturbance and Attornment Agreements [sometimes referred to simply as “SNDAs”].

16. UCC, Judgment, Pending Litigation, Bankruptcy and Tax Lien Search Report

17. Appraisal (must comply with Title XI of FIRREA (Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended)

18. Environmental Site Assessment Report (sometimes referred to as Environmental Phase I and/or Phase 2 Audit Reports)

19. Environmental Indemnity Agreement (signed by Borrower and guarantors)

20. Site Improvements Inspection Report

21. Evidence of Hazard Insurance naming Lender as the Mortgagee/Lender Loss Payee; and Liability Insurance naming Lender as an “additional insured” (sometimes listed as simply “Acord 27 and Acord 25, respectively)

22. Legal Opinion of Borrower’s Attorney

23. Credit Underwriting documents, such as signed tax returns, property operating statements, etc. as may be specified by Lender

24. Compliance Agreement (sometimes also called an Errors and Omissions Agreement), whereby the Borrower agrees to correct, after closing, errors or omissions in loan documentation.

It is useful to become familiar with the Lender’s loan documentation requirements as early in the transaction as practical. The requirements will likely be set forth with some detail in the lender’s Loan Commitment – which is typically much more detailed than most loan commitments issued in residential transactions.

Conducting the Due Diligence Investigation in a commercial real estate transaction can be time consuming and expensive in all events.

If the loan requirements cannot be satisfied, it is better to make that determination during the contractual “due diligence period” – which typically provides for a so-called “free out” – rather than at a later date when the earnest money may be at risk of forfeiture or when other liability for failure to close may attach.

CONCLUSION

Conducting an effective due diligence investigation in a commercial real estate transaction to discover all material facts and conditions affecting the Property and the transaction is of critical importance.

Unlike owner occupied residential real estate, when a house can nearly always be occupied as the purchaser’s home, commercial real estate acquired for business use or for investment is impacted by numerous factors that may affect its use and value.

The existence of these factors and their affect on a Purchaser’s ability to use the Property for its intended use and on the Purchaser’s projected investment yield can only be discovered through diligent investigation and attention to detail.

The circumstances of each transaction will determine what degree of diligence is required. The level of diligence required under the circumstances is the diligence that is due.

Exercise Due Diligence.

Multi-Family and Commercial Property Buyers: What Is the Expected Useful Life of the Systems?

Buyers often ask the real estate building inspector: “How long will the roof, electrical system, plumbing, etc. last?” The answer to these questions is not just based on the inspector’s experience.

There are agreed upon life expectancy tables. After reviewing many of them, the one table that seems to be the most relevant for commercial properties is the Form 4327 Physical Needs Assessment. It can be found on the Fanny Mae web site. It covers many items such as roofing, heating and AC units, as well as mail boxes, signs, clothes dryers, etc. This is one key standard we use when assessing the condition of a commercial or multi-family property.

Where the tricky part comes in is determining how much longer a system will last. For the most part that has to do with how well the building and its systems have been maintained. For example, we recently inspected an apartment building that was 50 years old and if it continues to be maintained at the level it has been it will last at least another 50 years. We also inspected a building that was only 20 years old and in need of such extensive repairs and maintenance that it was questionable whether or not it should be torn down.

A good real estate inspection should go over the five basic systems and the site – namely the plumbing, electrical, heating and cooling, roofing and structure. Some inspectors will be able to give you an estimate of the remaining expected useful life left in each. This is partially done from experience and partially from the above mentioned table. The experience shows us what shape it is in now and how well it has been maintained as well as the original quality of the materials used and the quality of the installation. All are factors that you don’t get from a table.

An example of assessing primarily from experience was many years ago when the customer asked me how much longer the roof would last. I told him that if it had some repairs and maintenance done now it would last another 5-10 years before it needed replacement. He was greatly relieved. In this instance, I was assessing this primarily from my experience of nearly 40 years in the trades.

The problem with relying only on experience is the wide variation in experience from person to person. When I first wanted to know how long the systems typically last, I asked an HVAC (that’s heating, venting and air-conditioning) specialist how long a typical roof mounted unit lasts. He told me 20 years or so. When I asked another one he told me 12 – 15 years. When I asked another he told me 15 – 20 years but that what really was important was how well it was maintained. He had seen some over 30 years old and doing fine. At that point I realized I needed to get some industry recognized expected useful life tables and discovered the 4327 Physical Needs Assessment.

This question continues to require ongoing research every day. I keep asking professionals when I see them. New products come out all the time. Some of the new ones don’t last nearly as long as the older ones – like the wall gas heaters you see in apartments. The new ones last maybe 10 – 15 years if they are used often. The old ones lasted 20 – 30 years or more because they were made with thicker materials.

Nothing beats a good thorough general visual building inspection by a seasoned professional to get the basic understanding of what you have and how much longer it should last if properly maintained.