Unbeknownst to many Wisconsin property owners easements with “perpetual” terms have “expiration dates.” Now is the time to review and renew your easements. For more click HERE.
If you, or your client, own real estate in British Columbia, Canada via a company, trust or partnership you need to know about the new reporting requirements effective September 17, 2018 as they affect the Property Transfer Tax.
The new regulation can be found by clicking HERE.
To read our previous post about this, please click HERE.
You need to be aware of an important submission date of August 19, 2018; if you are a land owner in British Columbia.
The BC Government is seeking feedback on proposed legislation concerning the reporting of beneficial ownership in land in BC.
The reporting raises several concerns, not the least of which is that it could lead to changes in the Property Transfer Tax in order to obtain it in a share sale, where the beneficial ownership changes. Additional concerns include privacy of individuals and the increase in administrative costs to continue reporting to the government.
This safe link provides more information: CLICK HERE
NOTE: I am not providing legal advice with this article. Please consult with a lawyer to determine the actions you may wish to take.
This past week the Supreme Court of Canada heard arguments in what is called the Redwater case. It’s expected that the Court will render its decision over the summer. At the heart of the court case is the question of bankruptcy and creditor priority versus the environment and environmental clean up.
Redwater was an insolvent oil company with approximately 70 wells operating throughout the province of Alberta. The primary lender to the company, ATB Financial, and the trustee argued that under Federal bankruptcy law the trustee in bankruptcy could sell the profitable assets and disclaim the well leases that were unproductive. This left the unproductive wells to the Orphan Well Association (OWA), an association funded by the oil industry and charged with decommissioning and cleaning up abandoned wells in Alberta. Part of their argument was Federal bankruptcy laws trump provincial environmental regulations. The lower courts appeared to agree on that point.
On the other side of the table, the provincial government argued that Redwater must clean up environmental hazards and any monies derived from the sale of assets should first and foremost go to the underfunded OWA to expedite the decommissioning of the abandoned wells.
As background to the case it should be noted that these wells are located on third-party agricultural land and the oil company had the right to install these wells so long as they paid a royalty or rental fee to the landowner. In this complicated case the lower courts ruled in favour of the trustee in bankruptcy meaning they could to pay the primary creditor (ATB) first and leave the abandon wells to the OWA to clean up.
Unfortunately, in Alberta there are approximately 1600 abandon wells and another 1500 underperforming wells. This means it could be decades before all the abandoned Redwater wells are decommissioned. This, according to the province and affected farmers, poses environmental, financial and health risks.
There is the argument that the lower courts decisions would give oil companies an ability to organize their affairs so they do not have to take responsibility for their drilling.
It is believed that the Alberta Energy Regulator erred by not requiring oil companies to post bonds or insurance to cover the decommissioning of abandoned wells.
So what does this have to do with commercial real estate?
If the Supreme Court upholds the two Alberta provincial courts decisions then it could have implications beyond the oil patch, and affect any premises or land where pollutants could be deposited.
Therefore, I believe it would be prudent for landowners to ensure their tenants post a bond, or obtain insurance in some form, to pay for the clean up of their operations if the tenant becomes bankrupt. Otherwise, a trustee in bankruptcy could simply disclaim the lease and the landlord would face the costs of cleanup themselves.
All the leases I’ve personally seen assume the environmental obligations pertain to a tenant that is viable and ongoing. They do not foresee what happens if the tenant is bankrupt.
Principle Consultant for the Greenstead Consulting Group, Peter D. Morris, comments on the closing of all the Sears stores in Canada in this article in Retail-Insider.com
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The traditional way multi-family properties are managed has not changed very much over many years. In this White Paper we discuss why the standard management practice doesn’t provide value enhancement and explore an alternative way of managing apartment portfolios.
We are pleased to welcome Focus Equities
as our latest client.
The developer of Bayview Place, a 20 acre master-planned mixed-use, high density community overlooking Victoria’s Inner Harbour is reimagining a former Canadian Pacific Rail roundhouse as a community gathering place and a 70,000 sf grocery anchored retail property aptly named the Roundhouse Marketplace.
In addition to retaining the original 1913 industrial architecture of the property, Focus plans on adding a selection of box cars for pop-up retail and food and beverage operations.
The completed project will serve in excess of 83,700 people living in a 3 km radius and will have excellent exposure to more than 14,000 vehicles that pass the property daily.
We have been retained to provide strategic pre-development asset management services that includes developing a merchandising strategy, lease execution and establishing standard operating procedures, processes and policies. Effectively providing complete Asset Management “in a box” prior to the project opening in 2017.
If you are looking to develop a retail property and need a similar program for your project CONTACT US. We will proudly help you realize your vision.
Commercial real estate leases can be intimidating to anyone who does not read and deal with them on a daily basis.
To start, many are over 50 legal-sized pages long, contain 14 major parts, are full of unfamiliar terms such as waiver of subrogation and legalese; such as “Whereas the Party of the First Part…..”
So I am continually shocked when small business owners either don’t have anyone review the lease before signing it or don’t seek the advice of a commercial lease expert. This occurs in about half of all lease transactions involving small business owners according to my own informal survey from decades of leasing, lease administration and training people about lease negotiation, leasing and lease administration.
Even more shocking is that a failure by small business to rigorously negotiate the entire lease document can result in significant financial issues and increased business risk. I’ve seen businesses destroyed due to a poor lease. That is why we show occupiers how to negotiate their lease correctly.
Many small business owners also don’t realize that the lease is the ongoing, two-way contractual arrangement between the tenant and the landlord AND the landlord and the tenant, so they file away the lease after it is signed, never to look at it again. In part, this is because they may be intimidated by the wording.
So here is a tip to cut through the convoluted wording when reading the lease. But keep in mind that anyone unfamiliar with a commercial lease should ALWAYS have a commercial lease expert and their lawyer explain both the lease clauses – in detail – and the nuances of the wording.
Always get or make a duplicate copy of the fully signed lease. The original should be kept in a safe place. It is the ONLY version that should be referenced if an issue comes up, because it is the ‘legal’ copy. The second copy is the one that become a quick reference guide to the lease. You will make a condensed version of the original lease highlighting the key point in each clause, using the copy.
On the duplicate copy ONLY, highlight the main essence of each clause, so that when reading the clause the main point you need to refer to in the management of your lease on a daily basis is highlighted.
Here is an example from a retail property lease concerning the need to keep store sales information. Here is the original wording as contained in the lease:
That the Tenant shall make and keep on the Premises for a period of at least two (2) years from the end of the Lease Year to which they are applicable or, if an audit is required or a controversy should arise between the parties hereto regarding Rent payable hereunder, then until such audit or controversy is terminated, correct
permanent sales records (indicating daily sales reports) in accordance with good accounting and retail practice, which shall be open to the inspection and audit of the Landlord or its duly appointed representative at all reasonable times.
Believe it or not, that is just one sentence. To fully understand how difficult that is to read I put the text through a readability assessment. This assessment uses various tests to determine what grade level you must have to easily comprehend what is written. Scores over 22 should generally be taken to mean graduate level text and most newspapers and non-technical books write for a grade 4 reading level
How did this fair?
|Flesch-Kincaid Grade Level||22.2|
|Automated Readability Index||25.3|
|Average Grade Level||20.5|
These tests indicate that this one clause could a person reading at a PhD level. No wonder leases intimidate people.
Now read that clause again. But this time pick out the most basic intent of the clause. You can either underline the important text or highlight it with a highlighting pen. But remember that if you make further copies of highlighted text, the highlighted portions may turn black depending on the colour of highlighter used.
How do you do that without having a PhD to understand the clause in the first place?
Use the Who, What, When method.
Almost all lease clauses provide direction to someone to do something by some time. To simplify the wording – for everyday needs – highlight Who must take action, What that action is and When is must be done.
Here is what you get:
That the Tenant shall make and keep on the Premises for a period of at least two (2) years from the end of the Lease Year to which they are applicable or, if an audit is required or a controversy should arise between the parties hereto regarding Rent payable hereunder, then until such audit or controversy is terminated, correct permanent sales records (indicating daily sales reports) in accordance with good accounting and retail practice, which shall be open to the inspection and audit of the Landlord or its duly appointed representative at all reasonable times.
And now the score is:
|Flesch-Kincaid Grade Level||8.8|
|Automated Readability Index||10.1|
|Average Grade Level||8.9|
There is certainly a lot more in the original clause than in the simplified, pared down version, such as where the documents should be kept, how they should be formatted, etc. But anyone reading the highlighted copy for the daily management of the lease will know that, in most circumstances, the tenant must keep sales records for two years after each lease year and those records may be audited by the landlord.
This isn’t a substitution for the exact lease wording and an understanding both the business and legal aspects of the original wording. It is however, a quick guide to gaining a basic understanding of the lease requirements for your day to day need.
Always remember that the lease is written from two perspectives.
The first is the legal perspective. That is why we have long complicated clauses as lawyers attempt to minimize risk by including as many specifics as possible over as many potential situations as possible. For this reason alone, the lease should be reviewed with a competently trained lawyer specializing in commercial real estate.
The second is the business perspective. The lease is the ongoing contract between the landlord and the tenant, so it must cover how that relationship will work over the time of the lease. This is a completely separate way of looking at the lease as compared to the legal point of view. Therefore, you need a commercial lease expert, such as our firm, to show you the business implications of the lease and how to properly negotiate the lease to protect your interests.
I wrote about the importance of carefully crafting a retail use clause recently. Today, I read that greeting card and stationary company Paperchase has entered into wholesaling arrangements with Staples, an office supply company. This marks an expansion of the Staples use from office necessities to appealing to the general public by introducing greeting cards into their mix.
Paperchase also announced shop in shop concessions in the Hudson Bay stores in Canada and a desire to do the same in the USA.
Other uses such as grocery stores, pharmacies and many others are expanding their merchandising concepts as consumer’s tastes change and they grapple with omnichannel competition.
All this points to the need for carefully crafted restrictive use wording. Admittedly, I hate restrictive use clauses in leases when working for landlords; and attempt to get them in tenant leases when working with occupiers.
When working for tenants I start with getting an exclusivity clause that says something along the line of the following: “The Landlord won’t suffer or permit any other tenant to sell or permit to be sold any product, service or merchandise that conflicts with the Tenant’s use.” Please understand that I am not a lawyer and I’m not offering legal advice by providing this wording so please discuss this article with your lawyer and obtain the best wording for your circumstance.
But why do I start with that type of wording? The concept I want to get across in the negotiation is a true broad exclusivity within the property. Going back to the Staples/ Paperchase situation, let’s assume my client operated a card store. When my ficticous client entered into the lease, Staples was not in the greeting card business. Now they are a direct and large competitor.
While a prudent landlord would exclude large box stores, multi-department stores and anchors from any exclusivity restrictions; I’ve seen many leases that don’t exclude them.
From the landlord’s perspective, this type of wording is very dangerous. It is very difficult to manage a property with this type of wording, particularly when it is tied to poorly structured use clauses. For example, how would the landlord tell Staples, a national tenant, that they couldn’t sell greeting cards in this one specific location? If the landlord did nothing and my example greeting card tenant raised the exclusivity issue, then the Landlord has problems with this tenant. It creates an untenable situation.
The answer to the landlord’s conundrum is a well crafted use clause for each and every tenant, an exclusion to any restrictive covenants as noted above and wording in any granted exclusivities that is limited to the landlord leasing space to a competitor.
To learn more about this topic and how I can benefit your investments contact the author to arrange a 30-minute, no-obligation consultation.
Peter D. Morris is the principal consultant at Greenstead Consulting Group and an acknowledged expert of income-producing real estate.
He has a unique perspective gained from multiple roles in real estate including consulting, training, acquisition/disposition, leasing, asset management, development and property/facilities management as well as being the Chief Operating Officer of a publicly traded real estate company. He has a depth of knowledge in most real estate asset classes including multi-unit residential, mixed-use, retail, office, industrial and hospitality. Peter has worked with top companies such as Cadillac Fairview, Brookfield Properties, Marathon Realty, Grosvenor Americas and Colliers International. He also brings a global perspective having worked in 8 different countries including Canada, the USA, as well as countries in Asia, South America and the Middle East.