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Reexamine Leases in Light of Heightened Security Concerns 

The criteria for leasing suitable office space used to be straightforward and well understood location, location, location. However, concerns raised by last year's terrorist attacks may affect numerous aspects of the leasing process. Allocations of risk and responsibility between landlords

Recent Court Decisions Help Real Estate Pros Avoid Litigation 

At the end of the year, it is helpful to revisit legal issues concerning commercial real estate by reviewing new court decisions that further the debate on these topics. Both of the examples cited here continue themes discussed in earlier

Recapture Clauses Help Landlords Retain Control of Properties 

Assignment and recapture clauses often are debated during negotiation of commercial real estate leases, and the relationship between the two is intertwined. In deciding whether to consent to assignments of tenants' leasehold interests, landlords frequently are required by law or

Risk vs. Reward 

Today’s economic climate has forced both public and private sectors to think outside the proverbial box to come up with innovative financing strategies. One strategy that has recently gained popularity is the sale leaseback. The mechanics of a sale leaseback

Retro Rejection 

When tenants file for Chapter 11 bankruptcy both landlords' and tenants' rights and responsibilities come under the purview of the U.S. Bankruptcy Code. Landlords cannot evict tenants in bankruptcy absent relief from the automatic stay, and tenants must continue to

Supreme Court Favors Property Owner Rights in Development Challenge 

In June, the U.S. Supreme Court issued a significant decision concerning inverse condemnation, or regulatory takings, in the case of Palazzolo v. Rhode Island. The ruling states that acquisition of property with notice of a prior regulation restricting its use

Swap Rent for Dot-Com Stock? Ask Tough Questions Before Proceeding 

With the explosion of dot com and high tech companies, some property owners are experiencing a new phenomenon tenants offering stock options or warrants in lieu of other forms of payment for lease transactions. This trend raises legal and business

Taking Issue with Taking by Regulation 

The story is familiar to property owners and legal practitioners In 1990, John and Florence Dolan attempted to obtain approval from the city of Tigard, Oregon, to replace their existing plumbing and electrical supply store in downtown Tigard with a

Protecting Possession 

Subtenants that do not employ mechanisms to protect their interests could face devastating consequences if a sublandlord files for bankruptcy protection. In such situations, bankruptcy law can operate to terminate subtenants' rights to possession. In a California case on this

New Legislation Encourages Developers to Clean Up Brownfields 

Enacted in 1980, the Comprehensive Environmental Response, Compensation, and Liability Act imposed liability for the release of hazardous substances on four categories of potentially responsible parties, or PRP the owner or operator of the facility at which the release occurred

Ruling Raises Issues About Who Pays CERCLA Cleanup Costs 

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to make those who created environmentally impacted properties responsible for cleaning them up. In particular, CERCLA allows current property owners to recover full or partial cleanup costs from

Greening Up 

In February, San Francisco Mayor Edwin Lee signed into law the San Francisco Existing Commercial Buildings Energy Performance Ordinance, requiring commercial building owners to file annual energy benchmark reports and to conduct more extensive energy audits every five years. New

Guide to Green 

The perfect example of local government hurdles to green building leapt off the newspaper page a few months ago. Former Vice President Al Gore filed a plan with the municipality of Belle Meade, Tenn., to install solar panels on the

Letters of Credit Help Protect Landlords Against Tenant Bankruptcy 

While the direction of the U.S. economy remains unclear, many businesses struggle to stay viable. In today's fast paced environment, even strong companies may succumb to financial pressures more quickly and with much more disastrous results than in the past.

Leasing Green 

Commercial real estate property owners and tenants are adopting sustainability programs that affect various aspects of their business operations. To implement such programs, property owners and tenants must look at their real estate, both existing and future, to determine what

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

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

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.  

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

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

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

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