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Articles Posted in Real Estate Law

ORivera2014By:  Oscar R. Rivera

For commercial real estate landlords, guaranty agreements requiring the principal owners of small businesses to personally guaranty the obligations of the corporate tenant are standard operating procedure. In addition, commercial landlords oftentimes also require the corporate guaranty of a parent or other affiliated company, if the creditworthiness of a corporate tenant or franchisee is questionable.  One question that is often posed is whether waivers of defenses by guarantors in such guaranty agreements are enforceable?  Fortunately, for property owners in Florida, if the waivers are properly drafted, the answer is yes.

The waiver of defenses paragraph helps property owners avoid costly and disruptive litigation if legal action becomes necessary to enforce a guaranty.  Guaranty agreements containing language that clearly and unambiguously waives defenses to the enforcement of the guaranty have been strictly construed and enforced by Florida courts.

A typical waiver provision reads as follows:

“Guarantor hereby expressly waives (a) notice of acceptance of this Guaranty; (b) presentment and demand for payment of any of the Liabilities of Tenant; (c) protest and notice of nonpayment, nonperformance, nonobservance or default to Guarantor or to any other party with respect to any of the Liabilities of Tenant; (d) all other notices to which Guarantor might otherwise be entitled; (e) any demand for payment under this Guaranty; and (f) any and all defenses relating to Landlord’s failure to perfect a security interest in Tenant’s property and/or seize or attach any other collateral.”

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ORivera2014For the third time this week, an article by one of our firm’s attorneys was featured as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  Today’s article, which is authored by shareholder Oscar R. Rivera, is titled “Appellate Court Strictly Construes FAR-BAR ‘As Is’ Residential Sales Contract.”  It focuses on a recent appellate ruling that affirmed an $850,000 award for legal fees and costs in a dispute over a $2.85 million residential sale gone awry.  Oscar’s article reads:

The ruling by the Third District Court of Appeal in Diaz v. Kosch, is certainly drawing quite a bit of industry attention, and there are a number of important takeaways from it for buyers, sellers and the professionals who work on their behalf.

The case stems from the sale of a Coral Gables home in 2012 for $2.85 million. After the sales contract was executed and the initial $50,000 deposit had been made, the buyers, who are identified in the ruling as both being “attorneys with substantial experience with real estate transactions and title matters,” notified their broker on the penultimate day of the 10-day inspection period about potential permitting issues with the property. On the following day, the buyers sent an email to the sellers accusing them of “active misrepresentations” and threatening “legal fees and litigation.”

dbr-logo-1-300x57Nonetheless, on the same date, the buyers made the second deposit of $235,000, stating it was “with full rights reserved.” A week and a half later, they emailed a notice of termination to the sellers, who were amendable to it and responded by imposing no conditions on the return of the buyers’ full deposit. However, apparently due to demands for a release from legal liability by the buyers’ own broker (who also served as the escrow agent), the deposit was not returned by the escrow agent.

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For many businesses, finding the right location at the best possible lease rates and with the best terms is among their most pressing and impactful challenges for the future of the enterprise.  The business location and the costs of leasing the space can often be among the foremost determining factors in a company’s long-term success.  As such, the negotiation of the terms of commercial leases is typically of the upmost importance.

For tenants, the best way to start is for the principals to gather information on the neighborhoods and locations that hold the most promise.  In addition to turning to highly experienced and qualified commercial real estate brokers for guidance, they should do their own research and become educated.  Prior to any meetings with prospective landlords and their representatives, they should take the time to conduct a thorough SWOT analysis to identify the strengths,cre2-300x237 weaknesses, opportunities and threats related to every prospective property.

This exercise, which is also beneficial for landlords to employ when assessing their lease offers, will help to enable businesses and organizations to develop a list of the priorities that they seek for each and every location.  Both landlords and tenants can use this form of analysis to create an agenda for their discussions.

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ORivera-DBR-profile-11-17The firm’s Oscar R. Rivera was the subject of a profile article in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Real Estate Attorney Oscar Rivera Traces Career Roots to Shredding Carbon Paper,” chronicles Oscar’s career in the law, which began when he was still in high school in the 1970s.  It reads:

Oscar R. Rivera’s first job at a law firm required him to go through the office trash cans to find and shred the discarded carbon sheets used to make copies of legal documents.

That was in the 1970s, and Rivera was in high school and working at a Miami management-side labor law firm. His shredding was meant to prevent a pro-union law firm from dumpster-diving to read the flimsy purple sheets to gain insight into its opponent’s strategy, Rivera said.

“If you looked at the carbon paper against the light, you could read the letter,” he said.

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Co-tenancy clauses allow key retail tenants a reduction in rent if other key tenants or a certain number of other tenants leave a center.  While not common for smaller retailers, they are more common for anchor tenants.  Anchor stores and other key tenants draw significant traffic to centers, and they are often among the primary reasons other tenants select their location.

With all of the challenges plaguing some retailers, including store closings by such major national retailers as Macy’s, K-Mart, Sears, Sports Authority, Kohls and Toys-R-Us, landlords could face significant losses when their remaining tenants demand rent reductions based on their co-tenancy clauses.

leasesign2Typical ongoing co-tenancy clause requirements state that if one or more specified co-tenants are no longer open and operating, the landlord has a set timeframe (typically 90 to 180 days) during which it must secure one or more comparable replacement tenants.  If it fails to do so, the remaining tenants with ongoing co-tenancy clauses will pay alternate rent amounts until replacement tenants are operating.  Ultimately, if no replacements are found for periods typically ranging from 12 to 18 months, the remaining tenants may have the right to terminate their leases.

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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 was 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 his work in representing the buyer of the Doral Costa office park in a $73.75 million acquisition.  It reads:

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, who 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.

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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. “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.

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