Real Estate Law

Real Estate 101 - Helping Residential Buyers and Sellers

     Most residential real estate transactions are handled by real estate brokers.  Traditionally, sellers execute a listing contract with a seller's broker who, in return for a commission of around 6% of the sales price, markets the seller's property on a multiple listing service (MLS).  Brokers representing buyers then show their clients properties of interest.  When a sale closes the brokers split the commission. One common exception to the standard process described above is when a "transaction broker" represents both parties. Today, to stay competitive, many brokerage firms are starting to offer flat fees for facilitating transactions.  Most straight-forward residential deals don't necessitate an attorney being involved on either side.  My opinion is that in most instances, competent brokers are more than capable of facilitating real estate transfers using the form contracts produced by the Colorado Real Estate Commission (CREC) for that purpose.  Also, brokers have access to resources such as the MLS, their own property databases and word of mouth intel on properties coming to market that real estate attorney can't provide.  The best brokers also bring marketing expertise and property staging expertise to their clients.   Therefore, until recently, my involvement in residential deals has typically been limited to helping buyers and sellers and their brokers in transfers involving high value, luxury class properties that involve significant changes to the CREC contracts, or in sales that have become contentious or involve some problem or extraordinary circumstance.  So far this year has been different noticeably different.

When parties use a broker, the higher the sales price, the larger the commission due from the seller

     While the bulk of my law practice remains focused on commercial real estate deals, finance and leasing, lately more buyers and sellers are asking me to get involved with their straight forward residential deals on the front end.  While I'm happy to help; I've also been curious why the volume of this work has increased so noticeably.  I perceive several reasons for this increase in residential deal work.  obviously, since leaving big firm life in January, I'm closer to the ground (both literally and figuratively) with office space in a building dominated by younger, dynamic entrepreneurs and tech oriented tenants so, I find myself talking to a variety of people and fielding questions about real estate throughout the days rather than talking to the same old people every day, and some of these conversations lead to residential work as these folks are looking for homes in a tight market.    Its no secret its a seller's market around Denver these days, with quality properties going under contract very quickly (often 24 hours or less) and commonly escalating into bidding wars.  Ready buyers abound and the higher the sales price, the larger the commission due from the seller at closing; consider that 6% of $400,000.00 is $24,000.00.  With buyers easier to find than ever and the supply of available properties at an all time low, I see sellers foregoing the MLS and coming together with buyers on their own through alternative means such as Zillow or most often, through word of mouth.  These sellers and buyers need someone to draft the contracts, deeds and other paperwork necessary to transfer the property and to coordinate closings with a title company - that is where I come in.  

these days I find myself drafting residential sales contracts between landlords selling condos or townhomes to tenants; and in seller-carryback deals.

     One fact that many people outside the real estate world don't realize is that brokers don't actually draft contracts.  While they offer many services a lawyer can't (see above), when it comes to drafting they simply fill in the blanks on CREC form contracts.  They are actually forbidden by law to make changes to these forms other than filling in the blanks and their forms are locked.  I use the same CREC form contracts as the brokers but, as a licensed attorney I have access to alterable MS Word versions.  That makes these deals  fun for me since I can make some changes to these contracts that benefit my clients!   Since I can draft contracts and coordinate a straightforward residential closing for in between 4 to 8 hours of total attorney time, regardless of the purchase price, the sellers I work with are usually very happy that my legal fees are substantially less than the brokerage commission would have been!  Buyers can also benefit from that fact and sometimes use it to bargain for a price reduction.  The two most common situations where I find myself drafting residential contracts for sellers and buyers these days are: when a landlord wants to sell their condo or town-home to their tenant; and when a seller is providing the financing for the buyer and taking back a note and deed of trust at closing.  I'm always happy to help sellers and buyers close residential property sales.

Commercial Real Estate Finance - Helping Borrowers Herd Cats.

Looking over Confluence Park April 2016.  Copyright: David C. Uhlig 2016

Looking over Confluence Park April 2016.  Copyright: David C. Uhlig 2016

     The reasons property developers and owners borrow money are as varied as the types of loans and lenders available: acquisition; rehabilitation; and re-financing are common.  A veritable buffet of lenders is available to those in need of funding, including: all sizes of conventional banks; pension funds; insurance companies; hard-money lenders and private individuals, just to name a few.  Loan rates, terms and structures vary greatly depending on the nature of the project as well as a borrower's financial picture and can become creative and complex, very quickly.   By the time a borrower is presented with a loan application or commitment letter, they've often spent a good deal of time and energy working with brokers, shopping various lenders, analyzing and negotiating loan terms, and are ready to get their project rolling forward.  Invariably, numerous other issues and ticking timelines demand attention.  One memorable client and I used to joke that the entire process is like herding cats!  It is at this point, where limited time and an ever expanding task list tempts one to 'just sign and move on', where it behooves one to slow down and proceed cautiously.  Before putting pen to paper on loan applications, loan commitments and loan documents, and then closing and pulling down funds, there is more to think about.  To ensure a smooth project, its essential for borrowers to have an attorney they can rely on to help ensure their interests are properly represented and protected in the loan documents, while paying attention to the loan closing timeline and its relation to other timelines.  

Borrowers should have their attorney review the loan application and loan commitment before executing.

     Most lenders require borrowers to provide a legal opinion certifying the enforceability of the loan documents but experienced borrowers understand they need counsel for more than the borrower’s opinion letter.  Wise borrowers involve their attorney early in the process and have them review the loan application and commitment before executing them.  Sometimes, lenders provide an abbreviated loan commitment and a dense loan application containing material terms and providing for substantial fees up front, when the application is executed.  Therefore, early and as often as necessary, borrowers should have a detailed discussion with their attorney concerning their project and plans for the funds, their overall timing requirements, and any burning questions or issues they have about the loan process.  Only then is it possible for the borrower’s attorney to effectively review the loan application and subsequent loan commitment with an eye toward confirming that the loan reflects the deal the borrower expects.  When representing borrowers my initial approach is to follow the money.  The application and/or the commitment addresses the fees, costs and expenses that the borrower will pay to the lender, such as application fees.  While its important for a borrower to understand when these fees are due, its essential that the triggers for non-refundability of the fees make sense.  Fees shouldn’t become non-refundable before studies such as environmental analysis and appraisals are approved and other approvals and conditions to closing the loan are buttoned up.  Loan applications and commitments are often vague or inconsistent concerning refundability of fees but if the loan doesn't close because the lender is dissatisfied with the results of post application due diligence or due to issues beyond the borrower's control, the borrower should receive a refund of advance fees.  Clients are very grateful when I'm able to remedy such refundability issues before they sign the application or loan commitment and it makes me feel great to add value early on.

Borrowers can best serve their own interests, and avoid delays, by involving their attorney in the conversation around the loan transaction as early as possible.

     One of the primary tasks a borrower's attorney performs is reviewing loan documents and providing a borrower's opinion letter that is satisfactory to the lender and lender's counsel.  Often, with commercial projects or even a straight forward re-finance, there are business entity structuring or restructuring tasks that must be completed.  That is another example of how borrowers can best serve their own interests, and avoid delays, by involving their attorney in the conversation around the loan transaction as early as possible.  Sometimes reviewing the loan documents for a borrower is a straight forward exercise confirming the documents match the business terms in the loan commitment, are compliant with Colorado law and don't contain any unwarranted or overly burdensome terms.  However, since the actual loan documents are almost always prepared by the lender's counsel, I never assume that will be the case and want to get my eyes on the draft documents as early as possible.  Invariably, the documents need help; sometimes its a little and sometimes, a lot.  The amount of work required at this point is usually directly related to the complexity of the loan transaction and the sophistication of the lender and their attorney.  I never cease to be surprised at this phase; even in the smoothest of transactions, often, lender's counsel is busy and working on several transactions at once and the draft loan documents contain incorrect or inapplicable terms and provisions.  While rare, sometimes large and sophisticated national or global lenders, with out of state counsel, are unaware of Colorado's public trustee systems and require input and help with the deed of trust and other documents referring to the security documents.  To my frustration (and horror), I've seen banks insist on using loan documents clearly designed for residential transactions and then balk at necessary changes to them.  In the end, my point here is that while I always hope for loan document review and finalization to proceed smoothly, invariably there are issues, and sometimes they are numerous!

     With the borrower's loan opinion, at a minimum, most lenders require opinions confirming enforceability of their loan documents, proper organization of any borrower entities and due authority of borrower signatories.  Lenders usually provide a form of opinion they'd prefer borrower's counsel to execute.  When representing lenders, from time to time I've seen borrower's counsel execute the suggested form opinion after merely confirming the accuracy of the listed loan documents and making a few minor changes.  Again, I realize practitioners become very busy but in such instances I always feel badly for those borrowers!   As is the case with legal negotiations over other standardized transaction documents, loan opinion letters usually warrant some borrower side revisions that come as no surprise when properly requested. In loan opinion letters drafted by lender's counsel, those include assumptions, qualifications and exclusions.  Its on the borrower's counsel to draft such changes to the opinion letter and its true that borrower's counsel is the one most exposed by signing legal opinions without requesting, and where necessary, insisting on the appropriate changes, but, from the client's perspective, one has to wonder what else the attorney missed if they didn't appropriately limit the borrower's legal opinion!

When borrowing funds it behooves borrowers to adhere to the maxim, Caveat Emptor!

     To conclude, while all parties in a loan transaction are eager to close and on a certain level, so long as payments are timely met there may be no problems, when borrowing funds it behooves borrowers to adhere to the maxim:  Caveat Emptor!  Whether a borrower is a seasoned and sophisticated real estate developer or an eager entrepreneur learning the ropes as they go with a smaller project, borrowers trying to pull a project together are pulled in several directions at once and even the most able cat herder can benefit from an attorney who understands their overall goals and who is well versed in helping facilitate loan transactions.  Luckily, fee structures at Summit 6, based on statements of work, allow me to engage in preliminary conversations with clients as early and as often as they desire, off of the clock, so that both of us can get a handle on the overall picture, what needs to happen and how to get there most effectively.  When representing borrowers my goals are: to be sure they are covered legally to the greatest extent possible, to shoulder the burden of nuanced legal issues in the loan documents to the extent my client is comfortable with that, and always keeping the transaction moving steadily toward a timely closing. Giddy Up, Cat Herders!


Just a Simple Lease? Think Again.

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Downtown Denver Early A.M. photo by David C. Uhlig

AFTER LANDING A POSITION WITH A 17TH STREET LAW FIRM I SPENT THE NEXT 5 YEARS FOCUSSED ON LEASING

     In May of 2000, after graduating from law school, I packed all my possessions into a Ryder truck and headed west. I’d recently turned down a generous offer with a reputable firm in Texas because, well, it was in Texas, and instead I started sending resumes to every law firm in Denver with over five lawyers; none responded.  It was a risky move but I was 25, full of confidence, ready for adventure and excited to finally execute on a dream I’d had since I was a kid, moving to Colorado.  I grew up around the oil business and was mentored by a couple oil and gas lawyers, so while I would’ve taken just about any job offer, in my heart I wanted to be a deal lawyer more than anything, like those early mentors.  Long story short, after a couple weeks I landed a part time job in the legal department of a national hotel company where my first assignment as a new lawyer was to draft a display window lease for a hotel. I'd arrived!  A couple months and hundreds of cover letters later, I landed a position with a 17th street law firm and then spent the next five years, day in and day out, drafting and negotiating leases: cell tower leases, office leases, storage space leases, retail leases, airplane hangar leases, trans-loading facility leases, and leases for national restaurant chains.  I used to dream about leases.  Former colleagues of mine from certain firms that shall remain nameless, who may be reading this, are currently nodding their heads – or maybe shaking them!  That story is the long way of circling back to the title of this post.  There is a statement every real estate lawyer has heard, probably more often than he or she cares to admit; “Its just a simple lease, take a quick look and let me know its okay.” As often as I’ve received the request, I’ve yet to see a “simple” lease. They may have short terms of duration, be for small spaces or involve low rental rates and I’ve definitely seem them drafted on short forms (short in both length and in thought), but leases are contracts, and like any contract, lease provisions, or lack thereof, can have serious consequences for both landlords and tenants.  Any lease, whether for a display window or several thousand square feet of space, involves many issues.  Parties proceeding on their own, without competent counsel, do so to their detriment.   

EACH CLAUSE IN A LEASE HAS AN OPTIMAL POSITION FOR EITHER SIDE AND USUALLY SEVERAL FALL-BACK POSITIONS

     Whether you are a landlord or a tenant, the lease you are considering was likely drafted, at some point, by a lawyer. While very desirable tenants may control the form of lease initially presented, its been my experience that the initial lease is usually prepared by the landlord’s attorney.  Love us or hate us, an important thing to remember about attorneys is we have an ethical duty to vigorously advocate for our clients.  That means the lawyer drafting the initial version of the lease, if competent, drafted it to their client’s ultimate advantage and in their client’s favor. Every clause in a lease has an optimal position for either side and usually several fall - back positions.  Whether representing landlords or tenants, a competent leasing attorney always asks for certain things and will know the appropriate counter-proposals to changes proposed by the other side.  So, when one chooses to go it alone, without a real estate lawyer involved, or if they engage a lawyer without leasing experience, the attorney who prepared the lease notices. The drafting attorney often reminds the soloist that they do not represent them (we always should) and asks if they have an attorney.  If the answer is “no, its just a lease”, their eyes light up!  It’s the small pleasures in life after-all.

     A few examples of leasing issues to think about follow below; it’s the least I can do if you’ve suffered my reminiscence this far.  Commercial landlords usually require personal guaranties from smaller, “mom-n-pop” tenants and its not an uncommon request of sophisticated and proven tenants.  Tenants with enough clout may be able to get around that requirement.  Even a smaller tenant may be able to negotiate some burn off or other relief in the guaranty agreement.  There are many possibilities and while it never hurts to ask; from a negotiation standpoint, it can hurt not to ask.  What does the lease say about assignment?  If a lease silent is silent about assignment and/or subletting, then the tenant is free to assign or sublet at their discretion.  Landlords don’t like that much.  Conversely, there are usually circumstances when tenants should be able to assign or sublet the space, perhaps with just an advance notice to the landlord and a copy of the documents. The landlord’s counsel won’t be surprised by the request.  What state will the landlord deliver premises to the tenant in?  When?  Is there an outside date for delivery? A landlord’s form lease is sure to specify that rent will commence upon delivery of the Premises but it might not provide for a pre-delivery inspection, not to mention consequences to the landlord for failing to deliver on time.   Landlords typically prefer to prevent dark space.  Post occupancy, what if the tenant pays rent but doesn’t open for business or ceases operations in the premises?  What if the tenant doesn’t operate during the hours the landlord prefers?  Form leases typically describe the tenant’s maintenance obligations but often contain sparse, if any, details about the landlord’s obligations.  If the landlord fails to satisfy its obligations does the tenant have any recourse other than a lawsuit for breach of contract (an expensive and thus, impractical solution for many tenants)?  I could go on but suffice to say, for nearly each of the 35 to 55 clauses in a proper arms length commercial lease there are several negotiation points and changing one clause often requires conforming changes to other provisions in the lease.  If a commercial lease is on 1 to 3 pages, or only has clauses addressing term, rental amounts and identifying the parties, such a state of affairs, while it is certainly “sloppy” is far from “simple.”  Believe it or not, I see those from time to time and when they are already signed its always bad news for the client.  Fixing such leases, or getting out of them, if possible, invariably costs the client more than it would have to negotiate an appropriate document in the first place.   

     See, not so simple, right? You should feel sorry for your real estate attorney.  Real estate attorney training is grueling and by all accounts, is similar at most big law firms: i. partner hands new lawyer a lease document and informs them whether the client is the landlord or tenant, ii. new lawyer revises the lease and returns it to partner, iii. depending on partner’s mood, new lawyer is either mercilessly berated on each counter they missed, or walked through every point he or she missed with the stern admonishment, “don’t make me show you this again” before being handed a fresh lease to review, and iv. new lawyer stays up all night and is extra careful to catch all of those changes, only to be admonished for missing a whole new set of points.   Once you start catching all of the negotiation points, you are rewarded with more leases at once and shorter deadlines!   It goes on like that for a few years, until you are dreaming about leases between being awakened by the dinging crackberry on the nightstand; remember those?  Eventually, usually after the partner observes a dangerous glint in an associate’s eye, they’ll take the associate off lease patrol and give them something more complex and humbling. However, there is always leasing work, its part of a real estate practice.

A REAL ESTATE ATTORNEY CAN IDENTIFY THE PERTINENT ISSUES AND HELP YOU FOCUS ON THOSE

     If the other party hands you a “simple” lease to execute, whatever you do, don’t go it alone, even if your budget is limited.  It’s a better use of resources to make sure the lease you sign is properly balanced than to try to fix it after the fact.  Negotiating a lease doesn’t have to be a protracted process.  If nothing else, a seasoned real estate attorney should be able to identify which issues are most pertinent to you and your business and help you focus in on those.  Regardless of how simple the space may be, or how complex the negotiations prior to the lease, there are always issues to think about in the lease, even the “simple” ones.

Thanks for reading!

Dave