Richard Smith

Richard Smith

Bernstein Shur

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Real Estate Tip: Non-Recourse Financing May Not Limit Liability

Nearly all real estate developers, landlords and their guarantors express a preference for non-recourse financing if they can get it. After all, limiting one’s liability to the specific real estate being developed or leased...more

7/24/2015 - Banking Sector Contract Terms Guarantors Insolvency Landlords Mortgage Lenders Mortgages Non-Recourse Loan Real Estate Development Special Purpose Entities

Real Estate Tip: IRS Form 3115 and Common Area Maintenance Charges

For the tax year 2014, many building owners and commercial tenants filed Form 3115 to confirm for the IRS that they are in compliance with the new tangible property regulations. Among other changes, these regulations...more

6/16/2015 - Capital Improvements Commercial Leases Commercial Property Owners Commercial Tenants GAAP IRS Maintenance

Beyond the Policy: Are Title Insurers Liable for Negligence?

When Longview Power built a coal-fired power plant costing well over a billion dollars, its lender obtained $825 million in title insurance coverage from First American, and First American signed Reinsurance Agreements with...more

5/8/2015 - First American Title Insurance Co. Mechanics Lien Old Republic Title Reinsurance Title Insurance

Real Estate Tip: Enforcing Shopping Center Reciprocal Easement Agreements in a Declining Market

Lord & Taylor signed a Reciprocal Easement Agreement, requiring its landlord to maintain a “first class high fashion regional shopping center.” The REA also required shared access and parking and required Lord & Taylor’s...more

4/27/2015 - Commercial Leases Commercial Real Estate Market Contract Disputes Easements Real Estate Development Retailers

Words Landlords Use Every Day: Standing and Privity

“Standing” is the right to bring a case to court. “Privity” is a legal relationship. A landlord and tenant may have (or may be in) privity of contract because they both agree to certain contractual terms in a lease....more

4/13/2015 - Assignments Commercial Leases JPMorgan Chase Landlords Privity of Contract Standing Tenants

Real Estate Tip: Buyers’ Blues

Buyer beware is an old warning. A recent title insurance case reminds us just how wary a buyer must be, even in 2015. In the case of IQ Holdings, Inc. v. Stewart Title Guaranty Co., 2014 WL 6601148, the buyer thought it...more

2/6/2015 - Condominium Associations Mortgage Escrow Account Real Estate Transfers Right of FIrst Refusal Title Insurance

Real Estate Tip: Foreclosure Confusion

The financial crisis has taught us a great deal about the mortgage transfer business, secondary markets and loan securitization. In the Spring 2014 issue of the Real Property, Trust & Estate Law Journal, Prof. Dale A. Whitman...more

1/9/2015 - Assignments Bank of America Deed of Trust Deeds Foreclosure Mortgage Lenders Mortgage Servicers Mortgages Promissory Notes Secured Lenders Title Companies

Real Estate Tip: Should Developers Select Selective Enforcement?

Let’s say you and 20 other drivers are exceeding the speed limit and the police give you, but no one else, a speeding ticket. Analyzing your fate requires using a legal concept called “selective enforcement.” This principle...more

12/12/2014 - Building Permits Conditional Use Permit Land Developers Land-Use Permits Permits Selective Enforcement Defense

Real Estate Tip: Risky Risk Allocation

Landlords and tenants spend a good deal of time deciding how to share risk, how to insure against it, and whether or not to provide indemnities with respect to it. When the leased premises is a place of public accommodation,...more

11/14/2014 - ADA Architects Assumption of the Risk Commercial Leases Commercial Property Owners Commercial Tenants Real Estate Development

Real Estate Tip – Confusing Precision with Accuracy

In a recent EPA case, Natural Resources Defense Council, v. United States Environmental Protection Agency, a federal circuit court found against the agency’s decision to allow a product’s registration because of a rounding...more

10/24/2014 - Appeals Deeds Real Estate Transfers

Real Estate Tip: ALTA 34-06 – The Endorsement That Saves The Day

Buyers and developers who are focused on negotiating terms of transactions, projecting future income and meeting deadlines, can often ignore real estate title issues until a defect in a title threatens to derail a closing....more

10/8/2014 - ALTA Endorsements Real Estate Market

Real Estate Tip – Resolving Ambiguities Between Landlords and Tenants

Courts have many ways of deciding whether a lease means what the landlord says it means or what the tenant says it means. Here are three typical techniques and examples to help resolve ambiguities: Decide against the...more

9/19/2014 - Landlords Leases Tenants

Mainebiz Real Estate Insider – Commercial Insurance Issues

Whether you’re a landlord or a tenant, insurance options for commercial real estate can be daunting. Knowing what to ask your insurance broker can save the day. This sampler of issues will help you and your broker manage risk...more

8/13/2014 - Commercial Real Estate Market Landlords Real Estate Market Tenants

Real Estate Tip - Keep It in The Family?

Using a will to give a commercial building to a loved one, a business partner or even a charitable organization is not ideal planning. Adverse tax consequences, the public probate process and operational difficulties aside,...more

8/1/2014 - Beneficiaries Charitable Donations Charitable Organizations Commercial Property Owners Estate Tax Limited Liability Companies Non-Profits Probate Real Estate Transfers

Mainebiz Real Estate Insider – Lender Liability in Real Estate Closings; Know Your Closer Well

The general phrase “lender liability” usually refers to cases where a lender does not live up to its own loan agreement, or where a loan officer promises more than the loan documents provide, or where the lender sells...more

7/22/2014 - CFPB Closing Documents Collateral FDIC Federal Reserve Lender Liability Loan Agreements Regulation Z RESPA TILA Title Companies

Real Estate Tip - The Emperor Has No Exhibits

All of us in the real estate world, regardless of experience or sophistication, have been guilty of ignoring Exhibit A. Like the emperor who believed his invisible cloth clothing could be seen by intelligent people, our...more

6/19/2014 - Real Estate Market

Real Estate Tip: The Case of the Shrinking Easement

Unlike most states, Massachusetts land transactions may be “registered” in a procedure conducted at the “Land Court.” The Land Court’s own engineering department reviews survey plans before registration is final. In this...more

6/6/2014 - Easements Real Estate Development Surveys

Real Estate Tip – Lender Liability in Real Estate Closings; Know Your Closer Well

The Consumer Financial Protection Bureau (CFPB) now enforces the Real Estate Settlement and Procedures Act and related laws dealing with real estate closings. ...more

5/22/2014 - ALTA CFPB Lender Liability Mortgage Escrow Account RESPA

Real Estate Tip – When a Title Insurer’s Coverage Isn’t

Frequently, policyholders sue their title insurance companies in order to determine whether a claim is covered and to force the company to pay any loss. Obtaining a court order confirming that a claimed loss is covered may...more

5/12/2014 - Old Republic Title Property Access Scope of Coverage Title Companies Title Insurance

Real Estate Tip – Commercial Purchase & Sale Agreements: The Basics Meet Today’s Market

A recent American Bar Association article brought to light issues regarding purchase and sale agreements in the context of a fast-moving, modern market place. Distilled from their discussions are the following reminders for...more

4/28/2014 - ABA Commercial Real Estate Contracts Purchase Agreement

Real Estate Tip: Hire Your Own Surveyor to Avoid a Close Call

A recent New Hampshire real estate closing was stalled at the 11th hour when the parties realized that a survey plan did not show the location of a no-build area created by private restriction in the chain of title. Since...more

4/10/2014 - Chain of Title Easements Real Estate Investments Real Estate Professionals Surveys Title Insurance

Mainebiz Real Estate Insider: “But I Didn’t Sign Anything” – How Electronic Communication Can Lead to Unexpected Contracts

In a recent Maine case, McClare v. Rocha, the state’s highest court taught us how dangerous email exchanges can be. This case brought to light an issue: whether an exchange of emails between lawyers can create a contract for...more

4/1/2014 - Contract Formation Electronic Communications Email Real Estate Market

Real Estate Tip – Condominiums: Development & Declarant Rights

Condominium development is often done in phases, some of which can be done on land referred to expansion land or land reserved for future development. Developers create condominiums by “declaring” them and the right to...more

3/14/2014 - Condominiums Housing Developers Real Estate Market

Real Estate Tip – “But I Didn’t Sign Anything”

In a recent Maine case, McClare v. Rocha, 2014 ME 4, the state’s highest court taught us how dangerous email exchanges can be. The issue is whether an exchange of emails between lawyers can create a contract for the sale of...more

2/24/2014 - Contract Formation Email Signatures

Real Estate Tip - Green Building Market Expected to Grow to $83B by 2016

In the last two years a significant number of studies and reports have shown that the trend toward green construction is unmistakable. On the commercial side, more than 60% of firms worldwide report that they are planning new...more

2/10/2014 - Green Buildings LEED Rules Real Estate Market

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