Commercial Real Estate Contracts

News & Analysis as of

Don’t Let Deposits Spoil the Deal

A recent case acted as a reminder of the risk inherent in taking a contractual deposit which is greater than the market norm. That case involved penalties for overstaying permitted parking times and re-confirmed the contract...more

Cuba and the Booming Commercial Real Estate Industry to Come

On March 20, 2016, President Obama became the first United States president in almost 90 years to visit the island of Cuba, located a mere 90 miles from the coast of Florida—signaling not only a renewed diplomatic...more

IRS Agrees Traditional Bad Boy Guarantees Do Not Change Character of Nonrecourse Loan

The Internal Revenue Service has apparently seen the light — at least with respect to the effect of “bad boy” guarantees on a loan that is otherwise nonrecourse for income tax purposes. Last month, we reported that the IRS...more

San Francisco Gross Receipts Tax – Frequently Asked Questions from the Real Estate Industry

The extended due date to file 2015 San Francisco Gross Receipt Tax (“GRT”) returns is April 29, 2016. In anticipation of preparing these returns, below are frequently asked questions (“FAQ”) posed by commercial real estate...more

Lease Assignments to Guarantors No Longer Valid

It is now clear that leases cannot be assigned to the tenant’s guarantor but serious issues arise out of the recent High Court case of EMI Group Limited v O&H Q1 Limited which specified that any lease assignment by a tenant...more

Stamp duty land tax reforms

Stamp duty land tax – Reform of charging provisions for non-residential property - In his Budget 2016 speech, the Chancellor announced changes to the rules for calculating the stamp duty land tax (SDLT) charged on...more

Finance Advisory: Risk Retention and the Preserving Access to CRE Capital Act

The final rules for implementing Section 941 of the Dodd-Frank Act as it relates to credit risk retention will become effective December 24 of this year. With the effective date quickly approaching, Congress has stepped in to...more

Real Estate Bulletin, February 2016

The Nutter Real Estate and Finance Group ended 2015 with a series of closings representing buyers, sellers, borrowers and lenders in commercial real estate transactions totaling more than $1 billion in aggregate value in...more

Real News – Winter Edition 2015/16

IN THIS EDITION - Ben Barrison reports on the long awaited Supreme Court’s decision in the case of Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited (pg 03); We dedicate two...more

A Closer Look at "Accidental Contracts"

While the intention of the parties in the deal may be straightforward, unfortunately the law is often not. Most real estate deals begin with a letter of intent (or term sheet) spelling out the principal terms of the deal....more

Waste on land: a warning for landowners

Fly-tipping continues to cause problems for businesses, governments and communities. Defra recently assessed the number of fly-tipping incidents during 2014-2015 at around 900,000 in England alone.1 It comes as a surprise to...more

[Webinar] Arbitration and Other Forms of ADR - Oct. 20th, 12:00pm CDT

In the general course of commercial real estate, conflicts will be resolved, one way or another. Is litigation the only solution? No, the parties to the dispute do have other options: arbitration and other forms of...more

German Market Toolkit

An increasing number of leases contain individual “green” clauses or a “green” annex which are aimed at making the fit-out, management and use of the relevant building sustainable (“Green Lease”). Currently, Green Leases...more

6 Things to Know When a Tenant Defaults Under a Lease

Tenant problems and defaults are inevitable challenges for successful commercial and industrial landlords and property managers. A bad tenant situation can be a potentially expensive problem and the ultimate outcome ?...more

Can You Keep a Secret?

Most real estate deals begin with a letter of intent defining the principal terms of the deal, the only enforceable paragraph of which is an agreement to keep the transaction strictly confidential. Prior to the start of due...more

Growing Medical Marijuana, Problematic in Bankruptcy, and Out

Frank Arenas is licensed in Colorado to grow and dispense medical marijuana. He and his wife own a building, half of which is used for the cultivation and the other half of which is leased to a marijuana dispensary. These...more

A Case of Caution: the Effect of Redevelopment on Existing Mall Leases

In a follow up to our other posts regarding the White Flint Mall redevelopment, the jury has reached a verdict. Until recently, White Flint Mall in Bethesda, Maryland was a prime example of retail mall success. However, as...more

Geography, Function and Objective Necessity: a New Approach to Non-Domestic Rates in the Office - Woolway v. Mazars [2015] – One...

Background - The Supreme Court has handed down judgment in a non-domestic ratings case that has overturned the approach to determining hereditaments where there are floors separated by common parts occupied by a tenant...more

Are Liquidated Damages Down the Drain in California?

Liquidated damages can provide parties added incentive to perform all types of contracts, including commercial real estate contracts. But are they enforceable in California? The short answer is that they’re presumed to be...more

Planning for the Unexpected: Casualty issues in Commercial Properties

PROPER BUSINESS PLANNING includes planning for unlikely but significant events such as a casualty that impacts commercial property. In part 1 of a 2 part article, we will focus on some key issues that tenants need to...more

GST: Going Concern Sales-Services & Management Contracts (Tax Update Australia)

The Commissioner recently amended the ATO's public ruling on GST and going concern sales, GSTR 2002/5. As explained below, the amendments confirm that a vendor who is selling a tenanted commercial premises is not required to...more

IRS Treats Rotating Digital Display Income As Good REIT Income

In PLR 201522002, the IRS clarified that REITs can earn good rent income from outdoor advertising displays even if multiple tenants rent the same display area for rotating ads. In the ruling, the REIT owned outdoor...more

The Basics of Commercial Real Estate Transactions: Important Contract Contingencies

Prior posts have discussed initial considerations in the purchase of commercial real estate and conducting due diligence prior to closing the deal. Today’s focus will now turn to contingencies often found in commercial real...more

The Basics of Commercial Real Estate Transactions: Due Diligence

The most enduring maxim of any transaction is “caveat emptor,” therefore a key element of any commercial real estate transaction is due diligence on the part of the purchaser. A thorough investigation into the fundamentals of...more

The Consequences of Walking Away: Breach of Contract in Commercial Real Estate

The temptation happens often: the deal is done, the ink is dry, the contract is finalized…then someone gets cold feet. Buyers don’t want to buy, sellers don’t want to sell, money gets tight, titles can’t be delivered, etc....more

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