Category: Commercial Real Estate

All real estate transactions are complicated, but commercial real estate tends to be much more so. Be it a lease or a purchase, the legal considerations are more complex, and there is generally more money on the line than in a residential real estate transaction. For these reasons, having the aid of a real estate attorney is even more critical in commercial real estate.

But what exactly does a commercial real estate lawyer do, and do you need one?

Contract Review

There are many potential factors to consider in a commercial real estate deal, from zoning restrictions to infrastructure requirements to maintenance responsibilities. If you plan to lease the property, you can’t make assumptions about what is or is not covered by the lease. Unlike residential leases where numerous consumer protections apply, in commercial real estate, you will be presumed to be knowledgeable about everything included (or not included) in the contracts.

A commercial real estate lawyer will be familiar with how these contracts work and can explain to you the benefits and drawbacks of each provision. You can know exactly what you’re getting into, which helps avoid problems further along in the process.

Negotiation & Closing

Commercial leases tend to be more negotiable than a typical residential lease, partly because there are so many more potential variables. For example, who is responsible for maintaining common areas, and is the landlord prohibited from leasing nearby property to competitors? Each of these variables can affect the value of the transaction for both parties.

An experienced attorney can zero in on these factors and ensure you get the best deal possible. The owner may be willing to make concessions or lower the rent in return for your assurances. Also, a lawyer who knows the market can help you spot a deal that  may be too good to be true.

Having an attorney is even more important if you’re purchasing the property. If you’ve ever purchased a house or apartment, you know how many steps there are before closing the deal. Commercial real estate is no different. Hiring a lawyer to help close the sale will save you time and effort.

Financing

Financing can be  pretty complicated in commercial real estate transactions, especially in the real estate development world. Owners, investors, brokers, and lenders may enter the picture, and boilerplate contracts simply won’t do. Commercial real estate attorneys can negotiate these complex arrangements and ensure you are protected in various contingencies.

Dispute Resolution & Workouts

Not everything always goes according to plan. Disputes arise between tenant and landlord, investors back out of deals, or sometimes business just slows down. A lawyer can help resolve these issues by negotiating with the other party (who often have attorneys of their own)  to minimize disruption to your business. For example, a landlord may be willing to accept lowered rent in exchange for a longer lease term. If the conflict can’t be settled, your attorney can  represent you in court.

Do You Need a Commercial Real Estate Lawyer?

Given the complexity and expense of commercial real estate transactions, it’s almost always worth consulting with an attorney specializing in these matters. They can review your paperwork and give you advice on how to proceed. Even this small amount of legal assistance can save you from major headaches later.

Our real estate team has years of experience in various areas, from representing clients in zoning applications to complex litigation. Schedule an appointment with our office to discuss your situation and explore your options.

Real estate investment is often an excellent choice for protecting and growing your wealth over the long term. When they are well planned, such investments can grow steadily in value and produce income in a predictable manner. 

A tax-deferred exchange, often called a 1031 exchange, can be an incredibly useful tool for anyone looking to manage the tax burden on their real estate investments, though the details can get complicated. Here we’ll explain the basics.

What Is a 1031 Exchange?

Named after Revenue Code section 1031, a 1031 exchange allows for “nonrecognition of gain or loss from exchanges solely in kind.” What does that mean? If you exchange one real estate investment property for another, any capital gains tax is deferred and the basis for the old property (i.e., the original purchase price, adjusted for costs of improvements, depreciation, etc.) is rolled over to the new property. 

Here is a stripped-down example that ignores complicating factors like depreciation and transaction costs:

You currently own property A, for which the basis is $200,000. You sell Property A for $250,000 and immediately reinvest the proceeds into purchasing Property B for $300,000. Typically, you would have to pay capital gains tax on the $50,000 gain you made on the sale of Property A, and the initial basis for Property B would be $300,000. 

However, if you file for a 1031 exchange deferral, you pay no capital gains tax (at least for now), and the basis for Property B would be $250,000 (the $200K basis from Property B + the $50K additional investment required for the purchase of Property B). If you were to later sell Property B for $400,000 and keep the proceeds, you would have to pay capital gains tax on the $150,000 gain ($400K – $250K) you made from the sale.

1031 Exchange Requirements

The IRS keeps a tight rein on 1031 exchanges, and several requirements must be met in order to qualify.

1. Like-Kind Exchange
   This means the properties exchanged must be similar in nature. This is broadly defined so that any two investment properties within the United States are likely to be considered of like-kind.

1. Must Be the Same Title Holder and Taxpayer
   The benefits of a 1031 exchange can’t be transferred to someone else. The title holder and taxpayer of the new property must be the same as that of the original property.

1. No Property Held for Sale
   1031 exchanges apply to real estate held for business or investment purposes. If you are flipping houses, on the other hand, the deferral would probably not apply. 

1. The New Property Must Be Identified Within 45 Days of Selling the Old Property
   The exchange does not need to be simultaneous (more on that below), but once you sell the original property you must identify the new property you plan to purchase within 45 days. This identification must be memorialized in a signed document.

1. The Purchase Must be Completed Within 180 Days of the Sale
   The clock starts ticking once you close the sale of the original property. If you have not finalized the purchase of the new property within 180 days, you will have to pay capital gains tax on the proceeds.

1. The Proceeds Must Be Held by a Qualified Intermediary
   The owner of the properties must never come into contact with the proceeds from the sale. Instead, the funds must be held by a “qualified intermediary.” This person or organization must be someone unrelated to the owner and has not had a financial relationship with the owner for the past two years. 

Types of 1031 Exchanges

There are four basic types of 1031 exchanges.

1. Simultaneous Exchange

This means the transfer of the old property and the acquisition of the new property happen simultaneously.This can happen through a little swapping of properties, or a structured transaction involving the seller of the new property, facilitated by a qualified intermediary. While this is the simplest type of exchange, in theory, arranging  these transactions can be quite complicated.

1. Delayed Exchange

In a delayed exchange, you can sell the original property (with the funds going to a qualified intermediary) and purchase the new property later, following the 45/180-day rules outlined above. Because this allows for more flexibility, it is the most common type of 1031 exchange.

1. Reverse Exchange

In this type of exchange, you can acquire the new property before selling the original property. This has some benefits, such as taking advantage of a good purchase price and allowing you 180 days to see if the market value of your old property increases, however, these transactions typically have to be done in cash.

1. Construction or Improvement Exchange

This allows you to sell the original property, transfer the new property to a qualified intermediary, use the proceeds from the sale to make improvements to the new property within 180 days, and then have the property finally transferred to you. This can be a very beneficial arrangement but also a complicated one.

Discuss Your 1031 Exchange with an Attorney

Depending on your situation, 1031 exchanges provide significant tax benefits that you don’t want to miss out on. However, they can also be quite complex and, if done improperly, result in a tax bill you may not be ready to pay. For this reason, it is recommended to plan the transaction in advance with the help of a legal professional.

Our real estate attorneys are familiar with all the requirements of a 1031 exchange and have the experience necessary to carry them out successfully. We can help you quickly formulate a plan that meets your financial goals and minimizes your overall tax burden.

Contact our office to schedule an appointment.

Property ownership in California can be quite a lucrative investment. However, when a property has more than one owner, it is not unusual for conflict between parties or for their interests to diverge. A partition action may be the only remedy when that is the case.

What Is a Partition Action?

A partition action is a legal process in which a joint owner of real property forces the division of the property to sell it. It is based on the legal principle that someone who owns property has an absolute right to sell it. For this reason, once a partition action is begun, the other parties can’t stop the petitioner from dividing the property (unless they waived their rights in writing); they can only fight over the details of how it will be done.

They are common when multiple parties inherit a single piece of property or when multiple parties invest in real estate but cannot agree over its management.

Types of Partition Actions

There are 3 basic types of partition actions in California.

1. Partition by Sale

This is by far the most common type of partition in which the court will force the sale of the property and distribute the proceeds accordingly among co-owners who are tenants in common. 

Imagine three siblings inherit a house from their parents; most people are not interested in having a 1/3 interest in a house where they don’t live, and even fewer people are interested in buying such an interest. The most reasonable solution is typically to just sell the house.

2. Partition by Appraisal

Partition by appraisal is an alternative to partition by sale. In our inherited-house example above, imagine one of the siblings wishes to keep the house. One or both of the other siblings can seek a partition by appraisal in which the one who wants to keep the house buys out the interests of the others. This can only be done with the consent of all parties.

3. Partition in Kind

Partition in kind means the party is physically divided among the co-owners. In theory, this is the default form of partition under the law, but it often doesn’t apply. After all, you can’t physically divide a single-family house between three people. It is more appropriate when large pieces of land, such as farmland, can reasonably be divided into parcels. This tends to be a lengthy and complicated process.

Avoiding a Partition Action

Partitions can be long and expensive, so the best remedy is to prevent them from happening in the first place. 

When multiple parties choose to purchase real property together, they often assume they will always agree on important issues. That is rarely the case in practice and they should do their best to anticipate future disputes. For example, is each party free to sell their interest to whomever they wish, or must the other co-owners approve the sale? Or, more basically, what is the exact nature of each person’s interest in the property?

Regarding inherited property, the co-owners are often thrown into the situation with no advance notice. Creating a clear estate plan that guides how property should be divided can be very helpful.

Talk to an Attorney About Partitioning 

Whether you are considering filing a partition action or have been served with notice of a partition by another co-owner, you should meet with an attorney before proceeding. A clear understanding of property law is necessary to ensure the partition is done properly and your interests are fully protected.

Our legal team has plenty of experience in this area and can help you resolve your dispute out of court or represent you in the partition action itself. Contact our office to discuss your situation and create a plan for moving forward.

For most people, selling and buying real estate will be their most complicated experience with contracts. There are many moving parts: home loans, escrow, title transfers, easements, and more. 

Thankfully, the process is so common that for most people, it will go relatively smoothly (even if it is frustrating at the moment), and the buyer and seller can part ways amicably and with no need for future interaction. 

That is not always the case, however. Sometimes the deal breaks down or if it does go through, one party believes the other was dishonest about key aspects. In these cases, there may have been a breach of contract, and if so, the injured party likely has legal remedies.

Breach of Contract in Real Estate

A breach of contract occurs when one or more parties fail to fulfill their obligations under the agreement. 

Here are some of the most common types of breach of contract in real estate transactions.

The Buyer Backs Out

It’s not uncommon for a buyer to back out of the deal. 

Often it’s because they could not obtain financing for the purchase, or the deal was contingent on the sale of their old home, and they were unable to sell it in time. 

Other times the buyer simply changes their mind and walks away. Depending on the terms of the agreement and timeline of events, any of these may constitute a breach.

The Seller Backs Out

Less common is when the seller backs out of the deal. Typically, this happens when the seller has decided against selling the home or received a better offer from another buyer.

Failure to Disclose Facts or Defects

The seller has a contractual and legal duty to disclose any material facts that affect the property’s value. This can be anything from mold to electrical problems. The information must be something the seller knows or should have known about but that would not have been evident to the buyer.

Remedies for Breach of Contract in Real Estate Deals

Where a contract has been breached, the injured party may have a legal remedy. Here are the three most common remedies for breach of contract in a real estate deal.

Retaining Earnest Money

Earnest money is a deposit (typically 5-10% of the purchase price) put down by the buyer to show they are serious and to get the seller to take the property off the market. 

If the buyer simply changes their mind about the purchase, the seller will generally be able to keep this earnest money. However, if the buyer backs out because they cannot secure a loan, it will depend on the contract terms and whether they provided notice in time.

Monetary Damages

The most common remedy for any breach of contract is monetary damages. The purpose of monetary damages is not to punish the party who breached the contract but to put the injured party in the same position they would be in had the contract gone through properly. 

For example, if a buyer agrees to purchase a home for $200,000 but backs out of the deal and the seller is only able to sell later for $170,000, the seller may be entitled to the $30,000 difference in price plus other expenses incurred.

Specific Performance

Specific performance is a less common remedy where one party is ordered by the court to perform the terms of the contract. This might occur when a seller backs out of the deal and tries to sell to someone else at a higher price. 

The court may order the seller to complete the sale to the first buyer because the property is unique and monetary damages are insufficient to compensate the buyer.

Discuss Your Options With a Lawyer

If you’re involved in a real estate transaction and believe the other party has breached the contract, your first step should be to speak to an attorney. 

Our team has years of experience in these matters; we can evaluate your situation and develop a comprehensive plan for resolving the matter efficiently in your favor. 

Contact our office to schedule your consultation.

When you are renting a commercial property, of course, you want everything to go as smoothly as possible. Operating a business takes all of your attention, and any disruption can be costly. However, as with any contractual relationship, disputes arise between tenants and their landlords. But don’t lose hope! With a little bit of help, resolving commercial property lease disputes without litigation or vacating the property can be possible.

Common Types of Commercial Lease Disputes

Commercial property leases can be complicated, and a wide variety of issues can arise, but here are the kinds of disputes you are most likely to encounter.

Failure to Pay Rent

It should come as no surprise that the relationship between landlord and tenant is ultimately about money. Therefore, the most likely point of contention between them is the tenant’s refusal to pay rent. It may be that the tenant doesn’t have the funds, or they are withholding rent over a larger dispute. Whatever the case, not paying rent will quickly escalate the situation.

Maintenance Issues

Maintenance issues generally fit into one of two categories. Either the renter and landlord can’t agree on who is responsible for certain types of maintenance (if a water pipe breaks, for example), or the parties fail to their responsibilities. Even seemingly small maintenance issues can balloon out of control if left unresolved.

Improvements/Modifications to the Property

It is often the case that a business owner will want to change a property to accommodate their business. These changes can range from painting the walls to installing heavy machinery. Disputes may arise over the tenant’s right to make these changes and who is responsible for paying for them.

Early Termination/Subleasing

If a tenant wants to vacate the property before the lease term is finished, it can lead to serious conflict with the landlord. For example, it may be that each side disputes how much money is owed to the landlord in that situation, or the tenant may wish to sublease someone else, and the landlord disputes their right to do so.

Resolving Commercial Property Lease Disputes

Most of the time, when it comes to resolving commercial property lease disputes, both landlord and tenant are keen to avoid litigation. However, the path to resolution can vary greatly depending on the situation. For instance, the landlord may want to take advantage of increased rental prices in the area, or it maybe the global pandemic has caused economic problems for both parties, and they are just trying to keep their heads above water. Whatever the situation, here are some general tips to minimize the fallout.

First, don’t say anything you’ll regret. It’s a lot easier to escalate than to de-escalate a situation. Once emotions come into play, people are less inclined to compromise. Also, you may have an ongoing relationship with the other party for years to come, which can be awkward if you’ve personally offended them.

Having taken a breath, your next step should be to consult an attorney. You need to understand your legal position before negotiating a fair resolution, and you need to be sure you aren’t missing any critical deadlines. Also, an experienced real estate attorney will typically better understand what options are available in a given situation. If you are a business owner strapped for cash, it may sound counter-intuitive to hire a lawyer, but you are much more likely to have a better outcome with professional help.

Southern California Real Estate Experts

If you are a commercial landlord or tenant having a dispute over your property lease, don’t let the problem snowball. Rely on our experienced real estate attorneys to help resolve your commercial property lease dispute. Contact us today to schedule a consultation.

Leasing commercial space is quite different from renting an apartment or house. Commercial renters’ needs vary greatly from one business to the next, so commercial leases tend to be much more customizable. Parties to commercial rental agreements are also assumed to be on equal footing, so the legal protections that apply to residential leases do not always apply in the commercial context. When negotiating a commercial lease, these tips can help you navigate the process.

Get Professional Help

Commercial real estate leases have many moving parts, and you’ll be better off consulting with a real estate attorney throughout the negotiation. First, a lawyer can help you understand the lease and the implications of all of its clauses, so at the very least, you know what you’re getting into. Just as importantly, a lawyer can propose alternatives that you might not know and help you put together a counter-offer that is more advantageous to your business.

Identify Your Business’s Real Estate Needs

It may sound obvious, but knowing in advance what your business requires in a physical location is immensely helpful for finding the right space and negotiating specific components of the lease. Ask yourself, what zoning requirements apply to your business? Do you need parking spaces for customers? Do you have any specialized utility requirements? Negotiating Specific Items in the Lease

Keep some of these key concepts in mind as you evaluate the lease.

• Duration – Landlords typically (but not always) favor longer leases and are willing to give you a discount for adding time to the lease. This may work in your favor, for instance, to help you lock down a prime retail location. However, if your business grows quickly, you may be stuck in an inadequate space.
• Additional Costs – Does the monthly rent cover everything, or will you be responsible for other costs? These can include common-area maintenance, property taxes, insurance, and more.
• Building Improvements – You may want to make changes to the premises to accommodate your business. You should identify what is permitted and who will pay for the work.
• Competitor Clause – If you are leasing space in a shopping center, can the landlord rent one of the other spaces to a competitor?
• Subleasing – If you want to leave the space before the end of the lease, can you sublease the space to another tenant?
• Termination Clause – Under what conditions may you or the landlord terminate the agreement? Can they kick you out for missing just one payment? If you leave early, are you required to pay the remaining time on the lease? 

Real Estate Expertise

With the future of your business on the line, the best course of action is to hire an attorney to help you negotiate your commercial lease. Our real estate team has years of experience in this field and is ready to advise you from start to finish. Contact us today to schedule a meeting.

With a pandemic-induced recession still looming large in the United States, reports such as the Allen Matkins and UCLA Anderson Forecast provide valuable insight into the current state of commercial real estate. Here are some takeaways:

Office Space Markets

The survey looked into trends surrounding working from home and how this impacts office space demand. Will an increase in work from home setups decrease demand for office spaces? It appears that the answer is not as straightforward. Factors such as what industries are currently hiring (tech and finance) and which ones will ramp up hiring in the future (health care) need to be considered. The survey also notes that:

“Although half of the Bay Area and Southern California panelists said their plans for the coming 12 months were unaffected by the pandemic, one-third are ramping back development by more than 15 percent from their previous plans. Overall, 75 percent of panelists expressed some stress with current tenant leases. For the one-third that will engage in some new development, the panelists in each market believed that land, building materials, and labor costs would be more favorable.”

Developments are projected to be on the rise beginning in late 2021.

Retail Space Markets

One of the hardest hit industries during the pandemic has been retail. Workers could not come in, there was loss of income so consumers have little to spend, and consumers in general have increasingly been turning to online shopping thus affecting brick-and-mortar stores. Here’s what the survey says regarding retail space markets:

“In the Bay Area and Southern California, two-thirds of panelists will not develop any new properties in the coming 12 months. Approximately the same percentage expect difficulty with current leases and expect plummeting property values.”

New retail development projects are still happening but there is a significant decline.

Industrial Space Markets

While panelists from the survey are generally pessimistic about the retail markets, they believe that the demand for warehouse spaces will still see steady growth. 

“Sixty percent of the panelists in Southern California and 43 percent in Northern California are planning at least one new development in the next 12 months, and 39 percent and 29 percent are planning multiple projects respectively.”

However, “[i]f If the demand for warehouse space and the stock of warehouses are increasing at about the same rate as projected, then 2023 will see a mild erosion of rental rates when adjusted for inflation, and there remains the possibility of some erosion in occupancy.” The outlook for industrial spaces leans towards a more balanced one. 

Multi-Family Housing Markets

In a previous UCLA Anderson study, there was a contrast between Southern California and Bay Area development growth rates. Panelists predict that with economic recovery and growth, multi-family housing demands in both Southern California and the Bay Area will increase with it. 

“Though the UCLA Anderson Forecast is looking at a 30-month recovery in the state, and there remains a great deal of uncertainty with regard to the current public health crisis, the market for multi-family housing remaining robust seems likely. Indeed, in spite of the turn-around in sentiment from each of the six panels, almost three-fourths of the Southern California panelists and two-thirds of the Bay Area panelists stated that the pandemic had either not changed their plans for future activity or increased it.”

The survey concludes with a hopeful take. Jerry Nickelsburg, UCLA Anderson Forecast Director & Senior Economist, notes that “this survey is not what is going on now, but what is going to go on three years from now in 2023. Across these spaces, with the exception of retail, there is certainly some optimism about opportunities that may exist.”

Your Southern California Real Estate Attorneys

If you or your business need legal counsel regarding your commercial space, our real estate law firm can help. Hoffman & Forde’s real estate attorneys have years of experience handling commercial real estate cases and advising business owners about their rights and responsibilities. Schedule a complimentary consultation today and tell us how we can help.

Nobody should be kicked out of their storefronts in the midst of a public health crisis. During these unprecedented times, it’s important to find every way to cut down on expenses and still keep your gym, restaurant, salon, or other commercial space. Thankfully, local governments have recognized this and issued moratoriums to halt evictions. With rent being one of the biggest expenses for business owners, now is the time to renegotiate your lease to help keep your business afloat.

In places like San Diego, county officials have approved a resolution that creates a moratorium on “all evictions of residential and commercial renters in the unincorporated areas who have seen their income reduced or been otherwise substantially economically harmed by the COVID-19 pandemic.” The moratorium will last through May 31. Los Angeles county announced their moratorium on evictions also lasting to May 31 and in the city of LA, tenants have 12 months after the moratorium is lifted to pay back rent. Several Orange County cities have also approved their own moratorium for both residential and commercial tenants.

When should I renegotiate?

The short answer? Now is the time. With the law on halting evictions in place for Southern California businesses, legal counsel will ease the negotiation process in a way that is mutually beneficial to you, your lender, and your landlord. Business struggles, market changes, or impending lease expiry are typical situations in which business owners seek to adjust their lease terms. The pandemic hits all of these factors and it would be wise to renegotiate before you are even further behind on payments.

Does renegotiating mean I don’t have to pay rent?

During this time you must be able to provide documentation of financial hardship due to COVID-19, and tenants are not exempt from payment. Different counties will have payback options once the moratoriums are lifted for missed payments. At the end of the 60-day moratorium (which may or may not be broadened), you are still at risk of eviction. Preparing to modify your lease terms now could impact your repayment as you and business recover.

We want to help protect your business.

At Hoffman & Forde, our lease negotiation attorneys are experts at real estate law and policies. Negotiation is an art and we have mastered it, yielding fruitful results for our clients. Our commercial loan modification program has helped our clients keep their properties and meet the cost of operations in the past, and we can do so even now. Leave the tedious, exhausting and potentially confusing commercial real estate negotiations to us and put your mind at ease.

We’ll put together a solid game plan to make sure you get a fair negotiation that will impact your business not just now, but also beyond the pandemic. Call us today to see how we can help.