With the number and complexity of commercial real estate transactions
reaching unprecedented levels, professionals in this high-stakes industry face
a daunting task: keeping up with the constant legal and regulatory changes
that can impact every phase of a deal.
Commercial Real Estate Transactions Handbook, Fourth Edition
will help you plan, negotiate and close deals using the insights and
strategies of nationally recognized real estate attorney Mark Senn and over 20
experts in the field. Collectively, the editor and contributors have handled
virtually every possible variation of commercial real estate transactions.
Their clear, concise discussions will guide you step-by-step through each
phase:
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Land and space acquisition
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Creating the owning entity, design and construction, due diligence, interim
and term financing, and occupancy leases
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The ultimate sale or disposition of the project
In addition, Commercial Real Estate Transactions Handbook is
logically organized by topic, so you always find the information you need
quickly and easily. Each chapter covers one broad topic area. Major subjects
are then distilled into highly informative sections that focus on specific
practice-oriented suggestions from the unique perspective of the “less
experienced” or “disadvantaged” party.
1. THEORIES AND TECHNIQUES OF NEGOTIATIONS - Jeffrey H. Newman
Negotiation ■ Creativity ■ Preparation ■ Arrival at the Negotiation ■ The
Opening Statement and Opening Pleasantries ■ The Beginning of Negotiations ■
The Middle Game ■ The End Game ■ Controlling the Paper ■ Surprise ■ Conclusion
2. CHOICE OF ENTITY IN REAL ESTATE TRANSACTIONS - Caryl B. Welborn
Introduction ■ Criteria in Entity Selection ■ Entities Available for
Consideration ■ Conclusion ■ Entities Comparison Table
3. REAL ESTATE BROKERS: AGREEMENTS AND CONDUCT - Bruce B. May, Esq.
Introduction ■ Licensing and Regulatory Requirements ■ Real Estate Agency ■
Commissions ■ Fiduciary Obligations ■ Agreements and Arrangements
4. CONSTRUCTION CONTRACTS - Philip E. Beck & John M. Mastin, Jr.
Introduction ■ Contract Structure: Choosing a Contractual Relationship ■
Contract Forms and Provisions ■ Allocation of Responsibility and Risk ■
Typical Problem Areas ■ Other Areas of Concern ■ Mold: What You Need to Know
Before You Need to Know It ■ Identifying, Assessing, and Managing Construction
Risks ■ Conclusion—Importance of the Construction Contract
5. PURCHASE AND SALE TRANSACTIONS - Michael Hamilton
Introduction ■ Letters of Intent ■ Early Access Licenses for Due Diligence ■
Purchase and Sale Agreement
6. NEGOTIATING THE PURCHASE AND SALE CONTRACT - Douglas M. Bregman
Introduction ■ Role of the Attorney ■ The Contract ■ Taxes ■ Closing a
Commercial Real Estate Transaction ■ Appendix 5A-A Model Purchase and Sale
Agreement ■ Appendix 5A-B Due Diligence Checklist ■ Appendix 5A-C Closing
Checklist
7. SURVEYS - Shannon J. Skinner & Gary R. Kent, PLS
Introduction ■ Why Get a Survey? ■ Ordering the Survey ■ Survey Review—Getting
Started ■ Legal Descriptions and Boundaries ■ Improvements ■ Easements ■
Access and Parking ■ Utilities ■ Certification and Miscellaneous Items ■
Appendix 6A 2011 Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys ■ Appendix 6B Checklist—Survey Review
8. TITLE INSURANCE IN COMMERCIAL REAL ESTATE TRANSACTIONS - John C.
Murray, Supplemented by Deborah Yahner and Jim Gosdin
Introduction ■ What Is Title Insurance—Is It Necessary? ■ Policy Forms ■
Difference Between Owner's and Lender's Policies ■ 2006 ALTA Policy and
Endorsement Forms ■ Covered Risk (Insuring Provisions) in Prior Policies and
in the 2006 Policies ■ Exclusions and Exceptions ■ Creditors’ Rights ■
Conditions ■ Schedule A ■ Commercial Endorsement Coverages ■ 2007 ALTA Short
Form Residential Loan Policy ■ Recent Endorsement Forms ■ Closing Protection
Letters
9. EASEMENTS AND OTHER SERVITUDES -John G. Cameron, Jr.
Introduction ■ Easements ■ Profits ■ Conservation Easements ■ Restrictive
Covenants, Reciprocal Negative Easements and Building and Use Restrictions
10. NEGOTIATING LOAN TRANSACTIONS - Robert A. Thompson & Brian D.
Smith
Introduction ■ Loan Applications and Commitments ■ Loan Documents n
Construction Loans ■ Leasehold Financing ■ Participation Loans ■ Securitized
Loans ■ Appendix 9A Loan Closing Checklist
11. OPINION LETTERS IN REAL ESTATE LOAN TRANSACTIONS - Joel J.
Goldberg, Robert T. Flick & Raymond S. Iwamoto
Introduction ■ Opinion Letter Reference Materials—Bar Committee Reports ■
Purposes of the Opinion ■ Roles of the Opinion Giver ■ Opinion Giver's Use of
Other Counsel ■ Use of Local Counsel/Unauthorized Practice of Law ■ Opinion
Format ■ Factual Matters Concerning the Opinion—Investigation; Knowledge
Limitations ■ Assumptions ■ The Remedies Opinion ■ Qualifications ■ Internal
Opinion Review Procedures ■ Special Opinion Items ■ Due Diligence ■ Opinion
Practice/Conduct ■ Standardization Versus Customary Practice ■
Non-Consolidation Opinions ■ Appendix 10A Relevant Reports ■ Appendix 10B
Sample Officers'/Partners'/Members' Certificate ■ Appendix 10C Sample Legal
Opinion ■ Appendix 10D Statement on the Role of Customary Practice in the
Preparation and Understanding of Third-Party Legal Opinions
12. PROPERTY AND LIABILITY INSURANCE AND INDEMNITIES IN REAL ESTATE
TRANSACTIONS - Aaron Johnston, Jr. & Charles E. Comiskey
Definitions ■ Indemnity and Waiver Provisions ■ Insurance Policy Forms ■
Property Insurance ■ Liability Insurance ■ Construction-Related Policies ■
Persons with Interests in Insurance Policies ■ Other Insurance ■ Waivers of
Subrogation ■ Deductible vs. Self-Insured Retention (“SIR”) ■ Self-Insurance ■
Quality of Insurance ■ Evidencing the Existence of Coverage ■ Sample
Provisions ■ Appendix A Certificate of Liability Insurance ■ Appendix B
Evidence of Commercial Property Insurance (2006 ED.) ■ Appendix C Lease
Insurance, Indemnity and Waiver Provisions ■ Appendix D Tenant's Insurance ■
Appendix E Construction Contract Insurance, Indemnity and Waiver Provisions ■
Appendix F Contractor’s Insurance
13. ENVIRONMENTAL ISSUES IN COMMERCIAL REAL ESTATE SALES AND LEASES -
Jack Fersko & Robert A. Stout, Jr.
Introduction ■ Laws Imposing Environmental Liability—Generally ■ The
Comprehensive Environmental Response, Compensation, and Liability Act ■ State
“Superfund” and Lien Laws ■ Contract Definitions ■ Contractual Reallocation of
Liability ■ Due Diligence ■ Selection of Environmental Consultants ■
Disclosure and Transaction-Triggered Laws ■ Underground Storage Tank Law ■
Landlord and Tenant Issues ■ Environmental Risk Insurance ■ Insurance Issues
Affecting Green Development
14. INDUSTRIAL LEASES - Peter Aitelli
Introduction ■ Grant, Description of Premises, and Statement of Term ■ Rent ■
Taxes ■ Maintenance and Repair Obligations ■ Alterations ■ Signage ■ Casualty
Loss, Insurance, and Allocation of Risk ■ Use ■ Assignment and Subletting ■
Default and Remedy ■ Subordination, Nondisturbance, and Attornment Agreements
■ Environmental Matters ■ Other Common Provisions ■ Condemnation and Casualty
Provisions that Shift Risk to the Tenant
15. RETAIL LEASES - Richard R. Goldberg
Introduction ■ Minimum Rental, Percentage Rental, and Other Income-Producing
Clauses ■ Competitive Restrictions for Landlord and Tenant ■ Landlord and
Tenant Exit Strategies ■ Assignments and Subletting ■ Landlord's Rights to
Control Future Development and Appearance in Antitrust Issues in Retail Leases
■ Conclusion
16. OFFICE LEASES - Mark S. Hennigh
Introduction ■ The Office Tenant’s Questions ■ What Are the Premises That the
Tenant Is Getting? ■ Services Included with the ■ Options—Generally ■ Use ■
Alterations ■ When Does the Lease Begin? ■ Workletters ■ What Does the Lease
Cost? ■ When Does the Lease End? ■ Assignments and Subleases ■ Option to
Terminate the Lease ■ Option to Extend or Renew the Lease ■ Subordination ■
Conclusion
17. ASSIGNMENT OF LEASES AND SUBLETTING - Stephen A. Linde, Martin
P. Miner & Sidney G. Saltz
Introduction ■ Reasons for Lease Assignments and Sub-lets ■ Assignment
Distinguished from Sublease ■ Lease Assignments: Liability and Assumption ■
The Subleasehold Estate ■ Tax Considerations ■ Right to Assign or Sublet ■
Lease Clauses on Assignment and Subletting ■ “Snap- Back” Assignments ■
Bankruptcy Issues ■ Special Situations ■ Conclusion ■ Appendix 16A Form of
Assignment and Assumption Agreement with Release of Assignor ■ Appendix 16B
Form of Assignment and Assumption Agreement Without Release of Assignor
18. COMMON INTEREST OWNERSHIP - Rebecca Fischer
Introduction ■ The Declaration ■ The Owners Association—Formation and
Membership ■ The Owners Association—General Powers and Duties v The Owner's
Use of the Common Elements ■ The Owner's Lot ■ Design Review ■ Assessments by
the Association ■ The Association's Responsibility for Insurance ■ Rights of
the Declarant ■ Rights of Mortgagees ■ Enforcement of the Declaration ■
Duration, Amendment, and Termination of the Declaration ■ The Project Lender ■
Other Association Documents
19. BANKRUPTCY - James R. Stillman
An Introduction to Bankruptcy Counseling ■ The Purchase and Sale Agreement ■
The Option Agreement ■ The Listing Agreement ■ The Property Manager/Operator
Contract ■ The Lease ■ The Real Estate Secured Loan
20. EMINENT DOMAIN AND ITS IMPACTON CONTEMPORARY REAL ESTATE TRANSACTIONS
- John J. Reilly, Esq.
Introduction ■ What Constitutes “Property”? ■ What Constitutes a “Taking”? ■
What Constitutes “Public Use”? ■ What Is Just Compensation? ■ Conclusion ■
Appendix 19A Some Issues for the Private Redeveloper to Consider When Involved
with Takings for Redevelopment
