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Overlooked Provisions when Negotiating Purchase and Sale Contracts

In protracted contract negotiations, many clients become dismayed when a deal they thought had been agreed in a letter of intent is suddenly the subject of contentious exchanges between the parties and their counsel. The clients may be comfortable with the purchase price or due diligence timelines, but many clients have never considered, let alone negotiated, the various other critical terms in a purchase contract.  These terms are often as, if not more, important, as they will define the scope of the parties’ rights relating to the transaction and exposure for lawsuits after closing. This article is designed to give a primer on the basics of these concepts so that parties may be better prepared when negotiating their purchase contracts at the letter of intent stage.

Real Estate Contracts: The Complex and Often Overlooked Indemnity Clause

“Let’s leave that to the lawyers.”  It’s a familiar refrain that I hear often as contract negotiations drag on between parties.  After the primary deal points in a contract have been agreed upon, many clients believe that the remaining terms can be easily resolved without their involvement.  Unfortunately, this is rarely the case, as what some clients perceive to be boilerplate or “standard” could become critically important if a dispute arises relating to the transaction.

COVID-19 Commercial Tenant Eviction Update

As March approaches, we are poised to hit the two-year anniversary of California’s March 4, 2020, State of Emergency Proclamation relating to the COVID-19 health crisis. In the months that followed, we watched federal, state, and local governments adopt myriad laws, rules, emergency orders, proclamations, declarations, ordinances, and mandates, creating a patchwork of rules and regulations for commercial real estate that defied generalization or statewide compliance practices. The market may never look exactly like it did before COVID-19 (note our last article: to-go alcoholic drinks are here to stay!). As concern over the virus appears to be waning, we are seeing jurisdictions generally, but not uniformly, remove their COVID-19 commercial tenant eviction protections*. We therefore thought it would be appropriate to highlight a few of the notable policies which are in effect in some of California’s markets. Of course, most of the rules listed below have exceptions, and exceptions to the exceptions, so please consult your local laws (or counsel) before proceeding.

New California Laws Affecting Real Estate in 2022

After surviving holiday family dinners, a few-too-many champagne toasts, and a record-breaking snowstorm, this team is ready to turn its sights to a new year and the exciting projects that are in store.  To kick off our 2022 newsletter season (and hopefully in better fashion than the Sacramento Kings), we thought it would be helpful to summarize a few of California’s noteworthy new-for-2022 laws.[1] There aren’t any earth-shattering changes that will require substantial deviation to standard operating procedures, but some represent new requirements that will need to be considered in upcoming projects.

The Importance and Dangers of Letters of Intent

Despite a global pandemic and a bingo-card full of natural disasters and calamities, the commercial real estate market has been extremely active over the past two years. While there are some signs that activity will be less frenetic in the upcoming year, most commentators project continued growth, development and overall volume. Many of our clients are already eyeing next year’s targets, beginning the negotiation process with the hopes of getting these deals under contract in the first quarter of 2021. Given these efforts, we thought it might be helpful to offer a friendly reminder regarding the importance and dangers of letters of intent. 

Recent Fires Serve as Reminder That Casualty Will Always be a Hot Issue

Fires have played a major role in the history of California. Not only have these disasters repeatedly left a trail of devastation through the State’s forests and other natural areas, but recent fires have been noteworthy in their damage to developed areas such as Paradise and South Lake Tahoe. The impacts will be felt for years, as families struggle to rebuild their homes and charred trees litter freeways and hiking trails. These effects are a good reminder to make disaster plans, including identifying key heirlooms and records and reviewing insurance policies for adequacy and comprehensiveness.

How New Legislative Policy May Affect COVID-Related Lease Disputes

Over the last eighteen months, we have been forced to devote significant resources to interpreting how largely-forgotten legal doctrines apply to real estate contracts in a post-COVID world. These principles, including force majeure, frustration of purpose, and impossibility/impracticability, were generally overlooked in real estate transactions until life-altering global events required their use. Indeed, many of the cases interpreting these doctrines date back to the world wars that dominated the first half of the twentieth century. Modern practitioners often did not even address these concepts in their agreements.

NY Court of Appeals Decision Highlights Growing Trend of Higher Courts Ruling Against COVID-Related Lease Defenses

Since the start of the COVID-19 health crisis, we have been approached by both landlord and tenant clients asking how COVID affects their leasehold obligations. While we have generally encouraged our clients to approach these matters in an honest and amicable manner with a focus on resolution, disputes have arisen between owners and occupiers. Legal resolution does not come quickly, as the legal process tends to delay final adjudication for several years. Some decisions have been rendered in interim proceedings (such as bankruptcies), but on the whole, there simply has not been enough time for COVID-related disputes to proceed through both the trial and appellate levels and provide guidance on how these lawsuits will be resolved.

The Importance of Lease Drafting: Lease Language Takes Center Stage in “Cinemex”

When in the throes of protracted lease negotiations, frustrated clients often ask me whether a proposed term is truly necessary to the contemplated transaction.  Most clients start these discussions with the goal of achieving a fair form of lease, but as consideration of the minutiae of lease provisions continues, clients typically hit a point where they no longer wish to spend any more money on legal fees and simply want to “get the deal done.”  This sentiment is both understandable and reasonable, especially where the risks associated with a provision may not outweigh the cost in legal fees required to resolve it in a favorable manner.  This sentiment can also cause mistakes, however, if either side is so committed to consummating a transaction quickly that it is willing to sacrifice clarity or accuracy in its lease.

Litigation Update: North Carolina Court Finds Insurers Liable Under Business Interruption Policies for COVID Losses Resulting from Shutdown Orders

In our last update, we highlighted a recent case out of the US District Court of Missouri (Studio 417) in which the court issued a preliminary ruling that allowed a group of policyholders to proceed with claims against their insurers based on allegations that the insurers wrongfully denied claims due to losses sustained as a result of the COVID-19 health crisis under business interruption insurance policies.  Prior to that ruling, insurers had largely stonewalled policyholders who submitted COVID-related claims under business interruption policies.  That case confirmed that these individuals could state facially valid claims for recovery and seek damages from the insurers based on the allegation that the presence of the virus on workplace surfaces constituted loss of or damage to property.