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Avoidance Behavior 

Mediation, arbitration, and other forms of alternative dispute resolution have become a favorable choice in today’s commercial real estate market. While ADR can be helpful, the involved parties often don’t realize the expectations of the process, which can make it

Default Decisions 

In the current market environment, commercial property landlords are experiencing an increase in the number of tenants that are party to U.S. Bankruptcy Code Chapter 7 and Chapter 11 proceedings. Landlords should have a basic understanding of their rights when

Carveout Consequences 

In the commercial real estate market&rsquo s current distressed state, mortgage lenders are faced with falling real estate values and sluggish properties that can&rsquo t meet debt service obligations. Inevitably, loan documents become the roadmap for lenders seeking to recoup

Deal Diagnosis 

During the past decade, hospitals and healthcare providers have been on a building spree. Not only is the quantity of developments growing, but project size is on the rise. Hospitals and healthcare providers often build new because aging facilities cannot

Developers Must Establish Public Purpose to Justify Eminent Domain 

Eminent domain is the well established right of government to condemn or take private property for public purposes. Most arguments relating to eminent domain deal with whether or not the owners of taken properties received just compensation. The general rule

Click With Caution 

The statute of frauds, which dates back to 17th century England and continues in some form in every state, requires that contracts for the transfer of real estate interests and for the sale of goods above a certain dollar amount

Buyer Beware 

Despite the current economy, the long term outlook for commercial real estate investments remains strong. In this market, foreclosing lenders, equity investors, and other bargain hunters have numerous attractive opportunities to acquire defaulting and distressed commercial real estate assets.  

Deposit Disputes 

Part of the toll of the ongoing commercial real estate slump is the high frequency of terminated deals. Scarcity of financing, valuation disconnects, and general economic concern all contribute to the “kill rate.” Of course, any time a deal is

Court's ADA Ruling Reminds Property Owners and Managers About Access Requirements 

Congress enacted the Americans with Disabilities Act as a comprehensive law designed to remedy discrimination — whether it is intentional or not — against those with disabilities in public and commercial facilities. The ADA requires continued efforts over time to

Conversion Conundrum 

As the housing market continues to suffer through its worst decline in recent history and demand for unsold units within recently developed condominium projects evaporates, the repositioning of condo projects into apartments may be a successful strategy for owners or

Courts Examine Brokers' Fiduciary Duties 

Once an owner hires a broker to sell or lease a property, a fiduciary relationship is established. The term fiduciary describes a position of trust The broker owes the seller loyalty and a duty to act in good faith during

Contamination Examination 

Real estate recessions create terrific investment opportunities &mdash the trick is figuring out which ones are right for you. With banks and loan servicers increasingly swamped by foreclosure properties, environmentally contaminated properties can offer particularly good deals. A fair amount

Are Property Managers Debt Collectors? 

In December 1998, a case that has potential significance for residential property managers and others who routinely collect rent for property owners came before the U.S. Court of Appeals for the 2nd Circuit. Romea v. Heiberger & Associates involved a

Cases Reinforce Importance of Brokerage Agreements to Obtain Commissions 

Many real estate brokers assume that a signed letter of intent or contract between a buyer and seller automatically guarantees them a commission. This could be a costly assumption, because letters of intent and contracts can be interpreted in different

Building a Case for Constructive Eviction 

During a typical Washington, D.C., summer, the state of the art air conditioning system in a recently completed class A office building broke down. With the windows closed, temperatures indoors routinely exceeded 90 degrees Fahrenheit. With the windows open, the

Business Breakups 

Given commercial real estate’s protracted downturn, brokerage arrangements, investment groups, and client partnerships may be on shaky footing these days. While breaking up is hard to do, learning how to do it successfully can help all business participants to pick

Bankruptcy Sales 

As this real estate cycle heads into its downturn, developers, investors, and lenders may face bankruptcy issues that they have not experienced in the past. Market slowdowns during the last 18 months may require these parties, as well as others,

Broker Beware of Changes in Buyer Beware 

Anyone involved in the commercial real estate business even 20 years ago knows that a basic tenet of doing business historically has been caveat emptor—let the buyer beware. Simply stated, this doctrine puts the burden of evaluating the quality and

TIC 2.0 

As the markets continue their recovery in 2013 and beyond, investors face a more challenging tax environment. Federal capital gains taxes have increased from 15 percent to 20 percent for high income taxpayers, passive investment income is now subject to

Retail Tenant Bankruptcies 

Despite a strengthening economy, the retail sector continues to face challenges. Since late 2014, several prominent retailers — including Brookstone, Coldwater Creek, Loehmann’s, Crumbs Bake Shop, Wet Seal, and most recently, Radio Shack — filed for Chapter 11 bankruptcy. While

Tug of War 

The year is coming to a close. Now is the time to consider charitable donations for today and tomorrow.

Individuals may think about what charities have made a difference in their lives. Or ask themselves what legacy they want to create. Now Alfred Nobel is not remembered as a cannon manufacturer but for funding the prestigious Nobel Prizes.

Chasing Value 

Change in tax law for REIT spin-off deals sparks creative solutions. Recent changes to the Internal Revenue Code have ended the tax-free benefits of real estate investment trust spin-off transactions. Characterized by some as a Wall Street loophole, the beneficial structure enabled operating companies to dist

Going to the Source 

Real estate agents and brokers often make disclosures without attributing information sources. In so doing, they become the source of the information. When the information is accurate, there is no problem. When the information is inaccurate, however, the agent or

Seeking Comfort 

When providing loans on branded hotel properties, mortgage lenders usually seek a “comfort” or “recognition” letter from the brand’s licensor or franchisor. A comfort letter is a tri party agreement among the owner, the lender, and the licensor. Its purpose

Exclusive Use 

As the nature of office space changes and as the mixed use concept proliferates, it’s not surprising that battles over exclusive use rights are spreading beyond their traditional arena at retail centers. It is common in retail settings for tenants