Articles Posted in Real Estate Law

Oscar R. Rivera

Oscar R. Rivera

The Daily Business Review, South Florida’s only business daily and official court newspaper, chronicles in its weekly “Dealmakers” column the work of South Florida professionals in putting together and finalizing many of the area’s largest real estate transactions.  The firm’s Oscar R. Rivera and David B. Halberstein were the featured Dealmakers in this week’s column, which appeared in today’s edition of the newspaper.  The article, which is titled “Attorneys for Buyer Closed $74M Office Deal with Bonus Acre to Develop,” focused on their work in representing the buyer of the Doral Costa office park in a $73.75 million acquisition.  It reads:

David B. Halberstein

David B. Halberstein

The reasons an affiliate of Triarch Investment Group wanted to acquire the 17.8-acre Doral Costa Office Park are clear.

The three Class A office buildings are 96 percent leased in a strong submarket. Tenants include Allstate Corp., HSBC Bank and Samsung. The property has nearly an acre of developable land.

“The Doral area is a very attractive area. Developable land in the heart of an office complex was very attractive to this buyer group,” said Oscar Rivera, a shareholder with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, who along with associate David Halberstein represented buyer Doral Costa Capital LLC.

“These buildings are anchored by a significant and well-established group of tenants,” Rivera added. “It was a very solid investment for the buyer group.”

But completing the $73.75 million transaction with the seller, an affiliate of Boston-based TA Associates Realty, required fast work.

dbr logo-thumb-240x45-55816“It was essentially two months from contract to closing with less than 30 days for due diligence,” Halberstein said.

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I am proud to be participating in the International Council of Shopping Centers (ICSC) University of Shopping Centers event, which will be taking place on the campus of the Wharton School at the University of Pennsylvania on March 7-9, 2016.  This three-day educational program will enable attendees to gain a higher level of knowledge of the retail real estate industry by learning directly from experienced professionals.

On Tuesday, March 8, I will lead the course titled “Economics of a Lease: Developers and Retailers Perspectives,” which will cover the strategies and tactics of negotiating monetary provisions, including minimum and percentage rent clauses, security deposits, operating costs, real estate taxes and merchants/marketing fund payments. The course is scheduled to take place from 2 to 5 p.m. Please click here for additional program details.icsclogo2015

Founded in 1957, ICSC is the global trade association of the shopping center industry with more than 60,000 members in the U.S., Canada and over 90 other countries.

orivera1The firm’s Oscar R. Rivera was quoted extensively in an article that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper.  The article, which was titled “Judge Urges Fairness in Foreclosure Actions,” focused on the concurring opinion written by Judge Chris Altenbernd of the Second District Court of Appeal in the court’s ruling filed on Jan. 13 in the case of Bonafide Properties v. Wells Fargo.  The article reads:

In Bonafide Properties v. Wells Fargo, the Second District affirmed a trial court decision to bar the investor/buyer of a foreclosed property from a bank foreclosure action. The court’s reasoning was that since Wells Fargo initiated its foreclosure first, the bank wins.

Altenbernd took the opportunity to philosophize about the process, which involves parallel foreclosure proceedings, that dates to the 2008 real estate meltdown. He encouraged trial judges to monitor the impacts on foreclosed homeowners and renters caused by this common form of investor purchasing.

He also called upon the Florida Bar, the Florida Supreme Court and the Legislature to do some fine-tuning.

“It seems likely that there is a measure of good within this innovative procedure that should be preserved,” the judge wrote. “It also seems likely that there is a measure of bad that ought to be regulated or prohibited by substantive law or rules of procedure.”

Knowledgeable observer Oscar Rivera said Altenbernd’s concurrence “shows the concern of courts about being fair to people who are being foreclosed and aggrieved by this situation.”

“He wants to make sure that in the context of the benefits, the homeowners and tenants are not being unduly harmed,” said Fort Lauderdale-based Rivera, who heads the real estate/corporate practice group of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel. “That’s commendable.”

Certainly there are benefits enough to entice the big stakeholders — home owner associations, lenders and the investor/buyers such as limited liability companies and HOAs.

The procedure goes like this: Florida is notoriously slow about completing bank foreclosures. In the meantime, HOAs looking for their unpaid fees file second foreclosure proceedings in county courts. Then either the homeowner defaults or the case quickly moves to trial.

The HOA gets a judgment. At the county court foreclosure sale the bidding is low because everybody knows the property typically is worth less than the mortgage that will eventually have to be paid off.

Often the buyer is an LLC that specializes in such purchases. The buyer pays the back HOA fees, the property taxes and insurance and rents to a new tenant at fair market value. Month by month profits accumulate because rents are relatively high and the property was obtained for peanuts.

“It is a benefit to the community as a whole if there are people who take over the units and pay their share while these long-winded foreclosures go through the system,” Rivera said. The property is stabilized and the bank can sit back and put off its foreclosure end game until the market rebounds.

The article concludes:

Rivera said in his experience trial judges already take pains to help homeowners. “Judges try and give the benefit of the doubt to the debtor, and the trial courts are reasonably compassionate with borrowers who truly have a desire to keep the property,” Rivera said.

He said he doesn’t expect the Florida Supreme Court to jump on Altenbernd’s suggestion that the justices tweak the procedure. “It’s a public interest issue and it would be more appropriate for the legislative side than the judicial side.”

Nor does he expect the Legislature to act, especially since many local governments have proactively addressed Altenbernd’s concerns. “Some say government already regulates way too many things, and we don’t need any more government regulation,” Rivera said.

Whether there’s more regulation or deregulation, the state’s foreclosure jackpot is nowhere near over. Sixty cases like Bonafide v. Wells Fargo are pending in the Second District alone, according to Altenbernd’s concurrence.

A year ago 300,000 open foreclosure cases were clogging Florida state courts, Coral Gables foreclosure defense lawyer Dillon Graham told HousingWire Magazine. Queueing up: about 550,000 homeowners who were behind in their mortgage payments by 90 days or more.

And with investors nudging housing prices skyward, chances are that more average buyers will get in over their heads, perpetuating the bubble-and-bust syndrome.

Still Rivera is optimistic about real estate after what he calls “the tail end of the foreclosure crisis.”

“We’re reaching the end of the cycle,” he said, “and hopefully there won’t be another one anytime soon.”

Our firm congratulates Oscar for sharing his insights on this opinion with the readers of the Daily Business ReviewClick here to read the complete article in the newspaper’s website (registration required).

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OscarRivera2014.jpgThe firm’s Oscar R. Rivera wrote an article that appeared today in the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which was titled “Best Practices for Buyouts of Unit Owners at Older Condos,” discusses recent changes in the Florida condominium termination law and important considerations for developers in these property acquisitions. Oscar’s article reads:

In the last several weeks we learned of a building in Surfside where the developer successfully bought out all of the units from their owners and another in the Brickell area where the developer purchased 60 of the 61 residences from their owners and is now using the statutory condo termination process to acquire the remaining unit and commence its development plans.

During last year’s legislative session, Florida lawmakers made changes to the condominium termination statute that made the process considerably fairer for unit owners. Now owners who are current on their mortgages and association fees must get fair market value, and their entire first-mortgage debt must be satisfied even if it exceeds the current fair market value.

In addition, for the original owners who maintain it as their homestead property, they must be offered their original purchase price regardless of whether it exceeds the current fair market value. The changes also enable some owners to rent their units for a year before moving out and receive a 1 percent relocation fee.

In light of these changes and in an effort to avoid any delays and additional costs due to holdout owners and related litigation, it greatly behooves developers in these buyouts to carefully assess and determine the valuation of the property in order to make very fair and enticing offers to the unit owners.

Keep in mind that the price that is offered to every owner will be based on the same exact price per square foot for every residence in the building, so the square-foot price must be high enough to entice even the owners of the most lavish units with the best views.

His article concludes:

The most effective approach is for the developer to work very closely with the association’s board of directors in order to get all of the pertinent information into the hands of every owner at the property. Meetings with the owners to answer all of their questions and allay any of their concerns are also a priority.

The contracts that are presented to all of the owners will be identical, except of course for their corresponding unit number, owner’s name and purchase price based on the square footage. There are no financing contingencies or property inspections required, but they do include contingency clauses indicating the required critical mass of units that must accept in order for the offers to be valid. They also include extension clauses to enable the developer to extend the deadline in case of litigation or other delays due to some of the logistics of the condo termination process.

In many cases, the only negotiations that take place with some of the individual owners involve their requests to remain in their residences and pay rent to the developer for a number of months after the closing. Developers should remain flexible in accommodating these requests, as typically they will not be able to begin the teardown of the property for months after the closings while other aspects of the condo termination and development processes are underway.

Our firm congratulates Oscar for sharing his insights into this important and timely topic for real estate developers with the readers of the Daily Business Review. Click here to read the complete article in the newspaper’s website (registration required).

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A recent ruling involving a lawsuit by Wells Fargo Bank against the former ownership group of the Palm Beach Mall is emblematic of the post-recession efforts of lenders to recover damages from their commercial real estate borrowers. The convoluted case included several counts alleging various types of damages against the former owners and operators of the mall, but the lender lost on all of its counts and motions in both the trial and appellate courts. While it ultimately may not have impacted the outcome, a couple of seemingly minor mistakes and omissions in the guaranty and loan agreements created significant difficulties for the lender that it was unable to overcome in court.

The recent opinion by the Fourth District Court of Appeal in the case of Wells Fargo Bank v. Palm Beach Mall et al. affirmed the lower court’s decision in favor of the mall’s former ownership group on all counts. The lender had alleged that the mall owners breached the loan agreement by engaging in gross negligence or willful misconduct in its management and also by failing to maintain its status as a “special purpose entity” by not remaining solvent and by paying its liabilities and expenses from sources other than its own funds and assets. It sought to recover the entire outstanding amount of debt owed by the former owner, which had defaulted on its loan and issued the deed for the property to the lender in order to avoid foreclosure.

The appellate panel found that the trial court correctly applied New York contract law, on which the loan agreement was based, when it interpreted the language in the loan agreement to mean that the mall owner would be liable only if it performed deliberate acts beyond acting out of its own economic self-interest. The opinion holds that the owners did not act with reckless indifference to the rights of lender, which is the standard that must be applied under New York law for a finding of gross negligence under an exculpatory clause.

PBM.JPGAs to the issue of the owner’s insolvency, because the loan agreement failed to define “solvent” or “insolvent” the appellate court ruled that the trial court was correct in rejecting Wells Fargo’s balance-sheet insolvency definition (i.e., a company’s assets exceed its liabilities) in favor of the New York common law equity insolvency definition (i.e., the inability to pay debts and obligations as they become due in the regular course of business) in its interpretation of the loan agreement. Therefore, the mall owner did not breach the “special purpose entity” covenant in the agreement, as it was paying its liabilities and expenses as they came due and correctly using capital contributions from a member of the ownership group to make the loan payments and meet its operating expenses.

The appellate court also was not swayed by the lender’s argument that the trial court erred in refusing to treat the “single purpose entity” language, which was used once in the guaranty agreement, as “special purpose entity,” which was used throughout the loan agreement, or to reform the guaranty agreement accordingly. The appellate panel found that the trial court correctly pointed out that Wells Fargo, as an assignee of the original loan, was not party to the negotiations which gave rise to the loan documents, and as such it was not in a position to argue whether or not the use of “single” rather than “special” in this instance was intentional or not.

While it may not have changed the ultimate outcome in the case, it does appear that the use of the word “single” in the clause in question was likely a mistake in the guaranty agreement that should have been detected and corrected by the original lender prior to execution of the agreement, thereby ensuring that the term “special purpose entity” was used consistently throughout all of the loan documents, including in the guaranty agreement. In addition, the lack of a reference for the specific definition of insolvency as well as the standard for gross negligence that were to be applied under the loan agreement were errors of omission.

These errors and omissions in the guaranty agreement and the loan agreement proved to be very problematic for the eventual assignee of the original loan, and they illustrate the importance of making these documents involving large commercial real estate loans as specific and comprehensive as possible.

OscarRivera2014.jpgThe firm’s Oscar R. Rivera contributed a guest column that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper, about the recent decision by the First District Court of Appeal in the case of Thomas I. Bowman v. Jon Michael Barker et al. His article reads:

. . . Bowman purchased a home from Barker that was later discovered to have numerous defects. He filed a lawsuit alleging that Barker failed to disclose known defects in the house contrary to his duty under the law and fraudulently misrepresented the condition of the house. The suit also included other defendants and claimed that they contributed to the problems and caused damages related to their roles in repairing, remodeling, inspecting and selling the house.

The defendants denied being aware of any defects in the property at the time of the sale and moved for summary judgment, which was granted by the circuit court.

In reversing the lower court’s decision to issue a summary judgment for the defendants, the First District Court of Appeal found that the home buyer had demonstrated the existence of facts and inferences that should have allowed the case to go to trial.

These included evidence that the home sellers were experienced real estate investors in other house-flipping projects, and they had knowledge of the extremely poor initial condition of the house. In fact, they admitted that it was in such bad condition that they were able to buy it for little more than the value of the land.

The defendants also admitted to knowing about the need for substantial repairs that included structural damage and a failing foundation, which was later estimated at more than $50,000 to repair, and about the existence of prior additions and unpermitted work.

The appellate panel found that this evidence raised questions of fact about the home sellers’ knowledge and also undermined their credibility and the plausibility of their denying knowledge of the defects and the necessary repairs.

Oscar’s article concludes:

The home sellers testified that the repairs had been completed prior to closing, but the appellate court found that there was evidence indicating that the main defendant had admitted to making several false representations on the property disclosure form, which he said was due to pressure from his Realtor and his dislike for completing those forms. The opinion also found that there were conflicting accounts of what representations he made about whether the repairs had been completed.

The evidence also revealed that the remodeling contractor has a different view of the instructions given and the scope of work. The company’s representative claimed that he and his business partner were never made aware of any structural issues, nor were they asked to repair them.

The court also ruled that the fact that the house was sold as is did not make summary judgment appropriate as the duty to disclose known defects continues to exist for a home sold as is. The opinion found:

Despite selling this house as is, the sellers had a duty to disclose what they knew about its condition, and they undertook to make disclosures to appellant about the condition of the house. The record demonstrates triable issues of fact about what that condition was, what the sellers knew about it, what disclosures were made and whether those disclosures were accurate.

Our firm congratulates Oscar for sharing his thoughts on this ruling and its positive implications for home buyers in Florida with the readers of the Daily Business Review. Click here to read the complete article in the newspaper’s website (registration required).

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A report in the latest issue of the International Council of Shopping Centers’ magazine Shopping Centers Today chronicles how major shopping mall operators across the country effectively filled what was an unusually large glut of empty store space in the first half of 2015.

The report includes data from the most recent quarterly financial disclosures from such industry giants as General Growth Properties, CBL & Associates Properties, Macerich, and Taubman Centers. All of the companies reported that they made strong progress in re-leasing their vacant stores, many of which stem from closures by retailers that also took place during the first half of the year.

Click here to read the complete article in the magazine’s website.

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A ruling filed on July 22 by the Second District Court of Appeal overturned the circuit court’s summary judgment in favor of a landlord for the eviction of its tenant that operated a restaurant and a separate nightclub from its two spaces at the property. The ruling adds clarity to the burdens that must be met for summary judgments granting commercial evictions.

In the case of Atria Group v. One Progress Plaza, II, Atria Group took possession of the two suites in April 2010, and One Progress Plaza filed for eviction in September 2013 alleging that Atria had committed numerous nonmonetary violations including damage to the property, illegal activity, disregard of building rules and other lease requirements, unsanitary conditions, and failure to clean the premises.

Atria promptly filed its answer and affirmative defenses, as well as a request for mediation and a counterclaim. It denied the majority of the allegations regarding the claimed breaches, and it argued that One Progress Plaza failed to give the requisite notice of breach and opportunity to cure, and the eviction would cause an inequitable forfeiture based on Atria’s $2 million investment into the promotion and renovation of the premises and its payment of $25,000 per month in rent since 2010.

In pursuit of its motion for summary judgment, the landlord filed an affidavit which outlined the alleged violations of the lease. The circuit court granted summary judgment for eviction in favor of the landlord, and the tenant appealed.

2dca.jpgThe appellate panel’s opinion notes that the lease agreement between the parties provides an important caveat for the establishment of material defaults and breaches of the lease:

“(3) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee . . . where such failure shall continue for a period of ten (10) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commences such cure within said 30-day period and thereafter diligently prosecutes such cure to completion.”

The appellate ruling concludes that the circuit court erred in granting the summary judgment for eviction because the landlord’s property manager acknowledged in his deposition that most of the alleged defaults or violations of the lease had, in fact, been corrected, and the affidavits provided by both parties raise issues of material fact about the occurrence of the alleged defaults and Atria’s curative acts within the terms of the lease. The panel also found that One Progress Plaza failed to establish that the alleged violations of the lease were material, given that Atria was remedying any problems as they arose, and the landlord failed to refute all of the tenant’s affirmative defenses or to establish that they were legally insufficient.

The court was also swayed by Atria’s assertions that eviction would cause an inequitable forfeiture based on its $2 million investment into the promotion and renovation of the premises and its continuous payment of the rent since 2010. It found that the tenant may be able to prove that it would be inequitable to terminate the lease in light of its significant investment in the property.

The appellate court’s opinion reiterates the stringent nature of the burdens that typically must be met for summary judgments for commercial evictions. In reversing the summary judgment for eviction, the appellate court remanded the case back to the circuit court for further proceedings, and its findings as to the validity of the tenant’s assertions and affirmative defenses should prove to be very influential in the case.

OscarRivera2014.jpgFirm partner Oscar R. Rivera wrote an article that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper, about the recent decision by the Third District Court of Appeal in the case of Blue Lagoon Development v. Maury and Leon Medical Centers. His article reads:

A recent appellate ruling found that the trial court erred in validating a buyer’s termination of its contract for the $23.6 million purchase of a commercial parcel due to the seller’s alleged failure to obtain a zoning change by the date specified in the agreement.

. . . Blue Lagoon executed a purchase and sale agreement in late 2007 for the sale of a large commercial real estate tract in Miami to Leon Medical Centers for approximately $23.6 million. One of the conditions in the agreement was that Blue Lagoon would obtain a change in zoning from RU-2 to BU-2 by July 31, 2008, but the agreement did not contain a “time is of the essence” provision.

A zoning hearing based on Blue Lagoon’s application was conducted on July 16, 2008, the Citizens Zoning and Appeals Board approved the application, and a resolution approving the zoning change was certified by a deputy clerk of the Miami-Dade County Department of Building and Zoning on July 23, 2008. The resolution was not appealed during the subsequent 14-day appeal period that expired on Aug. 4.

Leon Medical Centers, which had closed on another commercial parcel for the same intended use on July 11, 2008, for approximately $11 million less than it had agreed to pay for the Blue Lagoon site, sent a termination letter to Blue Lagoon on July 31 exercising its right to terminate the contract because it maintained that Blue Lagoon did not obtain the requisite zoning by July 31, given the possibility of an appeal after that date. The company moved forward with the construction of the medical facility that it originally planned for the Blue Lagoon site on the new parcel.

Oscar’s article concludes:

Based on the date in which Blue Lagoon secured the zoning change, which was prior to the July 31 deadline, the absence of express contract language requiring that any appeal period must expire before the “outside date” of July 31, and the absence of a “time is of the essence” clause in the agreement, the Third District Court of Appeal concluded that the property was rezoned from RU-2 to BU-2 as stipulated under the agreement and reversed the lower court ruling.

The appellate panel based its ruling in part on the opinion by the Fourth DCA in a 2012 decision finding that “the mere designation of a particular date for performance of such a condition does not make that date the essence of the contract; time is not of the essence, even in an agreement setting forth a specific date for performance, absent a showing that reasonable delay would have constituted a material breach or that the party entitled to performance suffered a significant injury due to the delay in performance.”

Our firm congratulates Oscar for sharing his insight on this new appellate decision with the readers of the Daily Business Review. Click here to read the complete article in the newspaper’s website (registration required).

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A recent opinion by the Fourth District Court of Appeal serves as a reminder to commercial tenants of the challenges of proving lost profit damages in landlord-tenant disputes.

In the case of Victoriana Building, LLC v. Ft. Lauderdale Surgical Center, LLC, the landlord appealed the circuit court’s final judgment in the tenant’s favor regarding the landlord’s breach of the lease, and the tenant cross-appealed the lower court’s decision not to award it damages for alleged lost business value or out-of-pocket expenses.

The appellate panel affirmed the circuit court’s findings in favor of the tenant and guarantor on the liability issues, and it also reversed the denial of the tenant’s out-of-pocket expenses claim. However, the court affirmed the lower court’s denial of the tenant’s lost business value claim.

On the liability issues, the appellate court concluded that the trial court properly determined that “the landlord first breached the lease by failing to provide code-compliant means of fire egress, and that the tenant therefore was excused from any further obligation under the lease.” Because the lease required the tenant to prepare the premises for the tenant’s specific use, and because the landlord breached its obligations under the lease, the appellate court found the landlord liable for all of the tenant’s out-of-pocket expenses to build out the space. 4dca.jpg These expenses totaled more than $975,000. Property owners should take note that a landlord can be liable for a tenant’s construction costs if it fails to perform its obligations under a lease.

As to the tenant’s lost business value claim, the appellate court found as follows with respect to the ruling by the trial court:

[T]he court properly determined that the tenant’s proof was speculative and therefore insufficient. “Lost profits are typically proven by one of two methods: (1) the before and after theory; or (2) the yardstick test.” (citation omitted). “The yardstick test is generally used when a business has not been established long enough to compile an earnings record that would sufficiently demonstrate lost profits and compares the profits of businesses that are closely comparable to the plaintiff’s.” (citation and quotation marks omitted). Here, the tenant’s expert consultant, in analyzing the viability of the tenant’s proposed facility, did not evaluate any comparable facility’s profitability as a “yardstick,” and the tenant’s expert CPA acknowledged that his report, which was based on the consultant’s report and forecast, was only “as good or as bad as [the consultant’s] forecast.” Thus, the tenant’s proof was insufficient.

Just as landlords should be aware of their potential liability for failure to perform their lease obligations, tenants also should be aware that an award of any damages other than out-of-pocket expenses will require additional proof. This appellate opinion illustrates that businesses which are seeking lost profit damages must understand the nature of the expert analysis and testimony that the courts will require in order to support their claims.

Our firm’s other real estate attorneys and I write regularly in this blog about important legal and business issues for the real estate industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to automatically receive all of our future articles.