Richard Smith

Richard Smith

Bernstein Shur

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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

Real Estate Tip – Part 2: Planning Board Demands: When Are They Unconstitutional?

Koontz v. St. John’s River Water Management District 133 S.Ct. 2586 (2013) - In our last real estate tip, we saw how the U.S. Supreme Court under the Nollan and Dolan cases test conditions of approval under the 5th...more

1/27/2014 - Building Permits Dolan v City of Tigard Easements Eminent Domain Florida Land Developers Municipalities Nollan v California Coastal Commission SCOTUS Takings Urban Planning & Development

Real Estate Tip – Planning Board Demands: When Are They Unconstitutional?

Landowners and developers often complain that their property rights have been “taken” from them as the result of conditions of approval imposed by a planning board. After all, the U.S. Constitution’s 5th Amendment enshrines...more

1/9/2014 - Dolan v City of Tigard Land Developers Nollan v California Coastal Commission Property Owners Real Estate Market SCOTUS

Real Estate Tip – Development Density: Three Key Contributors to Public Infrastructure

Good development requires good public infrastructure. In selecting sites for U.S. Green Building Council’s Leadership in Energy and Environmental Design certification, developers earn points for nearby public transit, walking...more

12/4/2013 - Infrastructure Real Estate Development Real Estate Market

Real Estate Tip - Standard Forms May Lead to Not-So-Standard Responsibilities

Standard affidavits and standard indemnities are potential traps for any borrower, even sophisticated commercial developers. Consider the experience of developers in West Virginia. At the closing for a $20 million apartment...more

11/5/2013 - Liens Mechanics Lien Real Estate Market

Real Estate Tip: Price Protection for the Stalking Horse Bidder

Real estate buyers may hesitate when a seller is in bankruptcy; extra care is often required. One of many possible bankruptcy-related transaction structures arise when a buyer strikes a deal directly with the bankrupt owner...more

10/21/2013 - Consumer Bankruptcy Real Estate Market

Real Estate Tip – Mortgage Loan Inspections: More Important Than You Think

As a buyer or tenant, if your budget does not allow for a full boundary or American Land Title Association/American Congress on Surveying & Mapping survey plan, be certain to engage a surveyor to conduct a mortgage loan...more

10/4/2013 - Mortgage Loan Inspections Mortgages

Real Estate Tip – Uniform Statutory Trust Entity Act: Citizenship vs. State

Trusts can be a good choice for real estate ownership. Delaware, Connecticut and states that have adopted the Uniform Statutory Trust Entity Act allow “statutory trusts” and some “business trusts” to own real estate in their...more

9/13/2013 - Real Estate Market Trusts

Real Estate Tip – The Built Environment and Profitability

The term “built environment” is used by advocates who see a connection between architecture and the health, vibrancy and sustainability of our communities. Groups seeking to restore historic and architecturally interesting...more

8/26/2013 - Architecture LEED Certified Sustainability

Real Estate Tip – How to Resolve Easement Disputes

Declarations of easements covenants and restrictions and reciprocal easement agreements are common tools used by neighboring businesses to define the use and maintenance of shared spaces – from parking lots and roofline...more

8/9/2013 - Appraisal Arbitration Easements Expert Testimony Mediation Out-of-Pocket Expenses Property Improvements Repairs

Real Estate Tip – Ground Leasing Part 3: Default May Lead to Tenant Losing Building

In parts 1 and 2 of our ground lease series, we discussed the basics of ground leases, including by-agreement and sales-based rent adjustments. Today, we look at another lease issue that becomes more critical in the ground...more

7/22/2013 - Default Foreclosure Ground Leases Landlords Mortgages Rent Tenants

Real Estate Tip – Ground Leasing Part 2: By-Agreement & Percentage-Rent Options

In our last real estate tip, we discussed the importance of good rent adjustment methods in long-term ground leases. Today, we look at the pros and cons of two rent-adjustment options...more

7/5/2013 - Landlords Leases Rent Rent Adjustment Methods Tenants

Ground Leasing Part 1: Leasing Land Instead of a Building

If a business cannot purchase or lease all or part of a building for its operations, a ground lease may be a viable alternative....more

6/17/2013 - Ground Leases Landlords Leases Lenders Rent Subletting Tenants

Real Estate Tip – On-Site Power Generation Part 2: Who Pays Fuel Tax on Your Natural Gas Honda Civic?

Today’s tip expands the topic of on-site power generation. Instead of “going green” with renewable power, consider installing battery-buffered petroleum generators, natural gas generators or fuel cells to...more

5/24/2013 - Fuel Tax Natural Gas

Real Estate Tip – Renewable On-Site Power: Who Pays to Charge a Tenant’s Chevy Volt?

In two previous LEED tips, Part 1 and Part 2, we explored how taking steps that result in LEED certification may yield little if any improvement in energy efficiency. Another efficiency-neutral LEED concern is clean on-site...more

5/10/2013 - Electricity Emergency Generators LEED Certified LEED Rules Renewable Energy

Real Estate Tip – Hedge Against Future Inflation: Understanding The Capitalization Rate

Net operating income ÷ building capital cost = capitalization rate - If you bought a building in 2007 for $450,000 that produces $36,000 in net operating income, your cap rate is 8 percent. If you think of the cap...more

4/29/2013 - Capitalized Cost Inflation Adjustments Interest Rates Landlords Property Valuation

Real Estate Tip – Tenant Fit-Up: When is the Job Complete?

Rent payments may be tied to a fit-up completion date, such as the tenant’s opening or receipt of an architect’s certificate. Once the fit-up work is complete and the tenant is paying rent, what happens if the landlord...more

4/12/2013 - Landlords Mechanics Lien Rent Tenants

Real Estate Tip – Casualty Loss: High Insurance Deductibles Can Inflate Common Area Maintenance Charges

A single casualty loss can affect both the tenant’s commercial space and the landlord’s structure. When that happens, a surprise cost can effectively reduce tenant’s insurance proceeds. The landlord may pass along its high...more

3/29/2013 - CAM Charge Casualty Insurance Deductibles

Real Estate Tip – Permitting: A $48m Lesson on the Importance of Notifying All Neighbors

In a recent Missouri case, a landlord lost a very significant commercial tenant and a title search company lost $48 million because of an incomplete permitting process. The tenant sued the title search company for failing to...more

3/15/2013 - Landlords Notice Requirements Permits Tenants Title Search

Real Estate Tip: LEED Certification and Energy Efficiency Part 2

In our last real estate tip, we reminded energy-conscious tenants that some rental spaces may have obtained LEED certification with few, if any, energy-efficiency points. If the owner built with energy efficiency in mind, ask...more

3/1/2013 - Energy Efficiency LEED Certified

Real Estate Tip – LEED Certification and Energy Efficiency Part 1

A commercial tenant may expect lower than normal energy costs when considering a green building, but lower energy costs are not guaranteed. The U.S. Green Building Council’s Leadership in Energy and Environmental Design’s new...more

2/14/2013 - Commercial Tenants Green Buildings LEED Certified

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