Do You Speak Legalese?

This article was written by Martin A. Schwartz, Partner at the law firm Bilzin Sumberg, and is reprinted here with his permission. His primary area of focus is Real Estate law and he can be reached at 305-350-2367 or mschwartz@bilzin.com


Peter Morris’ comments: As someone who must read, and interpret, leases and purchase and sale documents daily I agree with him. I add the word “interpret” because of the ambiguity in most documents. In some cases, the drafter of the document inserts words specifically so the true meaning of the concept can be read in multiple ways. I call these ‘wiggle words’, and I root these out for my clients whenever possible. Three (3) Cheers for Martin for his clear thoughts on this matter in his article that starts now.


Each profession has its own jargon but most professions rely on modern English as their base. Real estate and other transactional lawyers, those who draft legal documents, seem to be the exception. This is a strange phenomenon since most litigators, those attorneys who write only for fellow lawyers (i.e., judges), seem to have little problem writing in modern English. However, most real estate and other transactional lawyers whose work-product involves nonlawyer parties, usually find it difficult to express their thoughts in modern English. Instead, they rely on a strange language referred to as “legalese” to convey their message.

Merriam-Webster defines “legalese” as follows: “the language used by lawyers that is difficult for most people to understand; legal jargon.”1 The Oxford Guide to Plain English describes it somewhat differently:

“Fog in the law and legal writing is often blamed on the complex topics being tackled. Yet when legal texts are closely examined, their complexity seems to arise far less from this than from unusual language, tortuous sentence construction, and disorder in the arrangement of points. So the complexity is largely linguistic and structural smoke created by poor writing practices.

“Legalese is one of the few social evils that can be eradicated by careful thought and disciplined use of a pen. It is doubly demeaning: first it demeans its writers, who seem to be either deliberately exploiting its power to dominate or are at best careless of its effects; and second it demeans its readers by making them feel powerless and stupid.”2

William Safire, a former op-ed columnist with The New York Times, describes it more humorously: “[L]egalese often has the virtue of eliminating ambiguity, and should be read more as a mathematical equation than as prose, anything herein to the contrary notwithstanding.”3

Legalese is a language that relies on archaic language, poor grammar and sentence structure, repetition, surplus language, and legal jargon. The predicate for use of legalese seems to be that the parties will be represented by attorneys, and their attorneys will understand the documents even if their clients cannot. Although such an assumption may assist in promoting legal employment, it appears no more defensible than having legal documents written in Arabic in reliance on the parties using persons familiar with Arabic to explain the contents of the documents to their clients. Since legal documents will govern the rights and obligations of the parties for whom they are written, it seems only proper that such parties should be able to read and understand them. The use of legalese has been criticized by the courts: “[This is a] document checked full of legalese that can make a Byzantine scholar proud.”4

Some legalisms seem to be going out of vogue. Does anyone use “the party of the first part” and “the party of the second part” to reference the parties to an agreement? Use of these terms allows the drafter to avoid identifying the parties throughout the document, but to an untrained reader, it may be unclear which party is obligated to which obligations under the agreement.

Other terms seem to have survived the transition from the age of the bow and arrow to that of automatic weapons. Many drafters continue to use terms like “witnesseth” and recitals preceded by the term “whereas.” Frequently, last paragraphs in agreements conclude with “In witness whereof.” One may well wonder if such drafters think it is essential their documents look like legal proclamations intended to be admissible in the English courts of the 14th century or be in a form sufficient to be affixed to the nearest tree. And what about title affidavits that conclude with the phrase “further affiant sayeth naught”? This last phrase adds nothing to the affidavit that a period at the end of the preceding sentence would add, but it does perhaps provide the drafter with the comforting feeling that the affidavit is a “legal document.”

Attorneys do not seem to question why is it necessary to use language from the age of Shakespeare to express their thoughts. Such archaic language is nowhere else found in modern writing, and it surely does not improve the readability of the document in which it is contained.

Another tenet of legalese involves repeating numbers with Arabic characters and in words. It might not be necessary to provide for “a ten (10) day notice” rather than “a 10-day notice” but a reader seeing both the character and word will appreciate that he or she is reading a legal document. This has been referred to as the “stupid reader syndrome” since it appears to be predicated on the assumption that the reader will not be able to understand a number if it is only mentioned once. A danger, however, of this needless repetition sometimes appears in documents when the character and word do not match, e.g., “ten (15) day period,” which presents an interpretive problem as to which number is correct. This needless repetition is so engrained in the legal vocabulary that a request to a legal secretary to transmit two copies of a survey will appear as “enclosed are two (2) copies of the survey.”

Perhaps the hallmark of a legal document is the inclusion of “h” words. The words “herein,” “hereto,” “hereof,” and “hereinafter” are the staples of drafting in legalease. These words, other than “hereinafter,” defy precision because it is never clear whether they are referencing a particular paragraph, section, or the entire agreement. Typically the use of such language requires the drafter to add a separate definitional section to clarify their meaning because of their latent ambiguity. You will not see these words used in common parlance or even in nonfiction writing except perhaps the use of “hereinafter” referencing an existence beyond the grave. But these words are typically liberally sprinkled throughout a document serving as a beacon to identify the document: “This is a legal document!”

Another frequent device for drafting in legalese is the use of the expression “provided, however, that….” This phrase serves to introduce an exclusion to the immediately previously expressed idea. Although one may substitute a period for this entire phrase and follow with the start of a new sentence with the same effect, the use of this term allows the draftsperson to establish his or her credentials as a lawyer and, as a side benefit, permits drafting run-on sentences galore. One can test the elimination of this phrase by substituting a period before “provided, however, that…” and determine its absence has no effect on the meaning of the paragraph but only serves to increase its readability.

Legalese embraces repetition: one word is good; six words are better. Why refer to the “provisions” or “terms” of an agreement when you can mention the “terms, provisions, covenants, agreements, representations, and warranties” of an agreement? Would anyone without legal “training” think that the terms of an agreement would not include any representations, warranties, or covenants in the agreement? I think not, but verbosity is a preferred drafting technique.

Another form of repetition frequently utilized is couplets: two words used in conjunction when a single word will convey the same message. Frequently used couplets include: “terms and provisions,” “good and valuable,” “covenants and agreements,” “free and clear,” “each and every,” and “any and all.” Many attorneys sprinkle these liberally into their drafting so the reader will understand the document was drafted by a lawyer.

Related to repetition is the inclusion of unnecessary extra language. In referring to exhibits and schedules in a document, the drafter will frequently qualify such exhibits or schedules with the phrase “attached hereto and incorporated herein by reference.” It is not clear whether such a phrase has any legal effect. Would a reader think that an exhibit or schedule appearing at the end of a document and referenced in the document might be a stapling error? That is, it was never intended to be part of the agreement. Or that such documents were merely attached to the document to increase its length?

The use of legalese is perpetuated by reuse of form documents replete with legalese. New lawyers instructed to use form documents are inculcated into the use of archaic language, repetition, and run-on sentences. It has been noted that there is no economic incentive to “clean up” these documents by spending extra time merely for the sake of readability.5 Even lawyers conscious of the use of legalese frequently avoid removing such language in the haste to produce a document for distribution. Will Rodgers famously noted, “If I had more time, I would have written a shorter letter.”

There is a perception among new lawyers, and even among seasoned lawyers, that writing in plain English dumbs down the language of the instruments. This is surely the case in some consumer forms in substituting “I” and “you” for “buyer” and “seller.” However, in response, it has been noted that:

“[W]riting in plain English need not mean giving up sophisticated use of language and affecting a chatty informality. On the contrary, it requires sophistication to produce documents that are consistently coherent, clear and readable. By contrast, this “specialized tongue” of lawyers, “legalese,” may even be easier to write because it relies on convention instead of thought. At best, however, the result is wordy, pompous, and dull. At worst it is unintelligible.”6

Does legalese really improve the content? As an example of how legalese affects readability, below are two short paragraphs. The first is written in English and the second re-written in legalese.

Jim had the flu and went to see Dr. Jones. The doctor told Jim he would be better in 10 days if Jim stayed home, drank liquids, and slept for eight hours each night. If his condition did not improve by the end of 10 days, the doctor said he would prescribe antibiotics.”

Jim had the flu (hereinafter referred to as the “Disease”) and went to see Dr. Jones (hereinafter referred to as the “Doctor”) and the Doctor told Jim that Jim would be better in ten (10) days, provided, however, that (i) Jim stayed home, (ii) Jim drank liquids, and (iii) Jim slept eight (8) hours each night (hereinafter collectively referred to as the “Remedial Conditions”) and provided further that if by the expiration of said ten (10) day period and full and complete fulfillment of the Remedial Conditions the Disease was not fully or partially abated to the full and complete satisfaction of the Doctor, in the Doctor’s sole and unfettered discretion, then the Doctor would prescribe antibiotics.

In a survey in 1988 sent to 1,116 Florida judges and lawyers selected at random that contained six phrases written in two different styles without identifying legalese but only a “test of language trends in the legal profession,” the preparer of the survey received 628 responses: 352 came from judges and 279 from lawyers. The judges preferred plain English in 86 percent of their responses and the lawyers in 80 percent.7

The courts have been critical of the use of legalese.8 Is there any downside to use of such language? If ordinary individuals not represented by an attorney are intended to be bound by legal instruments not otherwise decipherable as written in the English language, courts have refused to enforce such agreements to the detriment of the drafters.9

Beyond the issue of enforcement, why is it necessary to draft documents far removed from common English? Why does the poor use of the English language with run-on sentences and unnecessary repetition make a document legal? In surveys of judges and attorneys, the overwhelming percentage of respondents opted for plain English over legalese.10

Any real estate attorney believing use of legalese is benign should be ordered to review and decipher language appearing in many securitized financing documents. There are numerous examples in such documents when one sentence can run an entire page.11 It is frequently impossible to understand the content of any provision with a single reading.

Consumer groups have been struggling for years to require consumer documents to be written in plain English. Since the world outside of the legal profession operates using plain English, it is difficult to justify using a different language to create enforceable legal rights and obligations. In some cases, the reward for using legalese is an unenforceable agreement.12


1 Merriam-Webster’s Learner’s Dictionary, “Legalese.”

2 Martin Cutts, Oxford Guide to Plain English (3d ed. 2009).

3 William Safire, Safire’s Political Dictionary (Rev. ed. 2008).

4 In Re Benninger, 357 B.R. 337 (Bankr. W.D. Pa. 2006). See also Gelinas v. State, 398 S.W. 3d 703 (Tex. Crim. App. 2013) (Cochran concurring opinion) (“These instructions are 100 [percent] legalese. They make no sense.”).

5 See Hills, Why Contracts are Written in “Legalese,” 77 Chicago-Kent Law Rev. 58 (2001).

6 Barbara Child, Language Preferences of Judges and Lawyers: A Florida Survey, 64 Fla. B. J. 32 (Feb. 1990).

7 Id.

8 State of Wisconsin v. Eason, 629 N.W.2d 625 (Wisconsin Sup. Ct. 2001) (dissenting opinion) (“The warrant and affidavit replete with terms normally found in attorney-drafted documents including “whereas,” “curtilage,” “to-wit” and other such similar terms. . . . Indeed law students have been taught for at least the last 50 years to avoid this kind of legalese.”); But see Bo Bingham, Lawyers Speak “Legalese” for a Reason, The Legal Lowdown (Oct. 6, 2015), http://www.thespectrum.com/story/life/features/mesquite/2015/10/06/lawyers-speak-legalese-reason/73460860/ (discussing the virtues of legalese).

9 See In Re Benninger, 357 B.R. 337.

10 See Kimble & Prokop, Jr., Strike Three for Legalese, Michigan B. J. 40 (Mar. 2014); Barbara Child, Language Preferences of Judges and Lawyers: A Florida Survey, 64 Fla. B. J. 32 (Feb. 1990).

11
For example: “‘Certificateholder’: With respect to any Certificate, the Person whose name is registered in the Certificate Register (including, solely for the purposes of distributing reports, statements or other information pursuant to this Agreement, Beneficial Owners or potential transferees of Certificates to the extent the Person distributing such information has been provided with an Investor Certification by or on behalf of such Beneficial Owner or potential transferee); provided, however, that, except to the extent provided in the next proviso, solely for the purpose of giving any consent or taking any action pursuant to this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, a manager of a Mortgaged Property, a Mortgagor or any Person known to a Responsible Officer of the Certificate Registrar to be an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, a manager of a Mortgaged Property or a Mortgagor shall be deemed not to be outstanding and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent or take any such action has been obtained; provided, however, that for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor shall be deemed to be outstanding, provided that if such amendment relates to the termination, increase in compensation or material reduction of obligations of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or any of their Affiliates, then such Certificate so owned shall be deemed not to be outstanding; provided, however, if the Master Servicer, the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer is a member of the Controlling Class, it shall be permitted to act in such capacity and exercise all rights under this Agreement bestowed upon the Controlling Class; provided, further, if an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor has provided an Investor Certification in which it has certified as to the existence of an Affiliate Ethical Wall between it and the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor, as applicable, then any Certificates beneficially owned by such Affiliate shall be deemed to be outstanding.”

12 See Paladino v. Avnet Computer Techs, 134 F.3d 1054 (11th Cir. 1988); Nicosia v. Wakefern Food Corp., 136 N.J. 401, 643 A.2d 554 (N.J. 1994).

This article was first published in the April 2017 issue of The Florida Bar Journal, Volume 91, No. 4.

The Ties That (May) Bind: ensuring letters of intent do not impose binding obligations on parties

The following article is reprinted with permission from the authors at McCarthy Tétrault. Their contact information is listed at the end, so you may contact them directly concerning this or other legal matters you may to discuss with them.

From our business perspective the three points that really stood out for those in the commercial real estate field, are the following:

1. Ideally any matters that are to be legally binding, such as a confidentiality agreement, and exclusive negotiation; should be separate from the LOI itself and needs to executed by the parties to that agreement – NOT the real estate agent, who may typically draft, and sign the LOI to advance an understanding of a negotiation.

2. Your actions, as an agent for your client, cannot be inconsistent with the intent of the LOI being non-binding.

3. Although not mentioned in this article, as we have stated many times before, it is vitally important to prominently note that the LOI is NON-BINDING, and you include a paragraph in the LOI letter noting that your client has not reviewed or approved of the contents of the LOI the agent is drafting.

Here is the article:

Non-binding letters of intent (“LOIs”), which sometime take the form of ‘indicative term sheets’ or ‘memorandums of understanding’, can be useful tools to start negotiations between parties in a commercial transaction. These documents, typically lay out the principal terms of a transaction and facilitate negotiations of a binding agreement between the parties.

LOIs are most useful when parties can set forth the main points of a proposed deal, such as the structure of the transaction or purchase price arrangements, without committing to a legally binding contract. However, recent Ontario jurisprudence confirms that, based on certain language of the LOI or the behaviour of the parties, LOIs may be interpreted as binding even where the parties explicitly intend for them not to be. As such, it is key to draft the LOI with purpose and be mindful of your actions during negotiations.

Risks and rewards of LOIs

There are several important advantages to using an LOI in the course of a transaction. Entering into an LOI signals to the parties – and in certain instances to the public – that the parties are serious about the potential deal, and it lays a foundation to further negotiation, thus creating deal momentum. An LOI also allows parties to set out their basic understanding of the key business terms they want to achieve before investing time and money into hiring a team of advisors and negotiating the full deal. The increasingly popular “Hybrid” LOIs, or LOIs that have both binding and non-binding terms, help the parties protect themselves during negotiations, such as through committing to confidentiality, exclusivity and non-solicitation terms.

Signing an LOI may also come with some hazards. Negotiating through an LOI may increase the costs and tensions of a transaction by requiring a separate round of negotiation. LOIs, which by their nature are shorter than definitive legal documents, can be internally incoherent and lend themselves to varied interpretations and expectations by the counterparties. An LOI may also create unintended disclosure obligations for reporting issuers by triggering material change and/or early warning reporting. The most critical risk of an LOI, however, is the possibility of a binding obligation being unintentionally imposed on the parties. In the private equity space, this can be of particular concern given the prevalence of investor or third party rights of first refusal that could be triggered by a party inadvertently creating binding obligations. The current case law on this issue is summarized below.

Recent developments in Ontario jurisprudence

As discussed in our recent Canadian M&A Perspectives blog post, Canadian common law courts have not formally recognized a general pre-contractual obligation to negotiate an agreement in good faith, however the Supreme Court has refrained from definitively indicating that such a duty might not be recognized in the future[1] and in certain provinces, such as Ontario, such a duty has been recognized in instances a “special relationship” exists between the parties. Our aforementioned blog post delineates a list of factors which may influence a court’s determination of whether a duty to negotiate in good faith exists on a case-by-case basis, including after an LOI has been signed.

Ontario courts have been more definitive in establishing when binding obligations may arise from a signed LOI. In Wallace v. Allen, the Ontario Court of Appeal held that an LOI must be read as a whole, with an eye to the presence of contractual language.[2] In the LOI in Wallace, the clause “this letter of intent must be reduced into a binding agreement of purchase and sale by the parties within the next 40 days” demonstrated a clear intention of the parties to be bound.[3] However, the Court of Appeal also held that general use of “the language of contract”, such as “it is agreed”, “upon acceptance” and “this agreement” created a binding implication even in the absence of language as unambiguous as the clause above.[4] The Court of Appeal also considered the behavior of the parties in making its finding. It held that the parties in Wallace behaved as though they were bound by the LOI – the seller announced his retirement upon the sale of the business, and referred to the buyer as the new owner.[5] The Ontario Superior Court recently extended this reasoning in Seelster Farms et al. v. Her Majesty the Queen and OLG, noting that contractual language may not be necessary provided that hallmarks of contractual intention – an offer, an acceptance at its inception and consideration – are present both within the wording of the LOI and the behaviour of the parties.[6] In Seelster, a contractual relationship was formed, which led the court to consider the LOI as an enforceable agreement.

Drafting considerations

Parties drafting an LOI should do so with clarity and a sense of purpose – it is key to identify at the outset which terms are intended to be binding, and which are not. The following tips will be helpful if the intention is to draft a non-binding LOI:

  • Avoid any contractual language, such as “it is agreed”, “upon acceptance”, “this agreement” or “the parties shall/will”.
  • Clearly state the conditions under which parties intends to be bound, for example by stating that a binding intent will only be crystalized in a definitive agreement and the entering into of a definitive agreement is contingent on the Recipient’s satisfaction of its due diligence review, external factors and the Recipients sole discretion.
  • Include a “non-binding” provision that expressly covers which terms are and are not intended to be binding on the parties. For example, an LOI may state that, other than the confidentiality and exclusivity clauses, all other sections are not binding on the parties and any such provisions will only be binding when incorporated in an executed definitive agreement.
  • Consider dealing with any non-generic binding provisions in a separate agreement or exempting them from the LOI, such as an exclusivity letter agreement or confidentiality agreement for example.

Making sure to “practice what you preach”

The language of the LOI, however well-drafted, is not alone sufficient to prevent binding obligations from arising. In the aftermath of Wallace and Seelster Farms, the intention of the parties to enter a binding agreement is to be determined on the entirety of the evidence. Where the parties intend for the LOI to not be binding, they must act as such. Behaviour that implies that the deal is going to happen and that negotiations are a mere formality may influence the courts to read in contractual obligations between the parties of a non-binding LOI. Any inter-related agreements will also be considered in this determination, meaning other contractual relations between the parties must not differ from the intention stated in the LOI.[7]

Post-script: Extra caution in the Province of Québec

Parties contemplating an LOI governed by Québec law should be mindful that the Civil Code of Québec provides a statutory duty of good faith which requires the parties to conduct themselves in good faith both at the time the obligation arises and at the time it is performed (as opposed to only when the obligation is performed, which is the current law in Ontario, for example).[8] In its recent August 2020 decision in Beauregard v. Boulanger, the Quebec Superior Court reiterated that an LOI is an agreement akin to a preliminary contract, and thus imposes that the parties conduct themselves in good faith.[9] That said, the obligation to act in of good faith at the pre-contractual stage does not prevent either of the parties from putting an end to negotiations that have failed or that have been carried out in bad faith by the other party. While the court ultimately found that the defendants could withdraw from the LOI, the court in an obiter explained that a party who breaks off negotiation in breach of its duty to act in good faith could expose itself to the damages suffered by its counterparty between the signing of the LOI and the breakdown of the discussions (for example, damages could include the fees and expenses of advisors incurred in that period and travel expenses). The obligation of good faith in preliminary contractual relations is particular to the Civil Code of Quebec. It has yet to be determined whether the Supreme Court of Canada decision in Bhasin v. Hrynew, [10] which recognized as a general organizing principle of common law good faith in contractual performance, extends to preliminary contractual relations.

[1]Martel Building Ltd. v Canada, 2000 SCC 60 at para. 73.

[2]Wallace v. Allen, 2009 ONCA 36.

[3]Wallace v. Allen, 2009 ONCA 36, at para 27.

[4]Wallace v. Allen, 2009 ONCA 36, at paras 29-31.

[5]Wallace v. Allen, 2009 ONCA 36, at para 34.

[6]Seelster Farms et al. v. Her Majesty the Queen and OLG, 2020 ONSC 4013, at para 175-178.

[7]Seelster Farms et al. v. Her Majesty the Queen and OLG, 2020 ONSC 4013, at para 177.

[8] Civil Code of Québec, section 1375.

[9]Beauregard c. Boulanger, 2020 QCCS 2090.

[10]Bhasin v. Hrynew, 2014 SCC 71.

Authors

  1. Daryna Kutsyna
  2. Claire Gowdy
  3. Chrystelle Chevalier-Gagnon

Here is a link to the original article: CLICK HERE

Proptech in 2019 & Electronic Contracts

What-Is-Proptech-and-Which-Players-You-Should-Follow-in-Asia-1440x564_cProptech” is a new term that stands for property technology. It encompasses all types of technology used in commercial and residential real estate, from chatbots used by Realtors®  on their websites to smart devices to control property functions, such as building access, to software used to analyze and manage a property, tenant relations and leases.

The Proptech industry has seen accelerated growth in the past few years growing from $4 Billion to almost $8 Billion, and advancements continue to be made in many areas.

At the same time, the laws around the use of these technologies continue to develop as law makers craft regulations around the incorporation of new technologies in real estate. Nowhere is that more apparent than in the use of electronic signatures and contracts.

The first and most fundamental question is this: Are electronic contracts valid?

The UN Model Law on Electronic Contracts was first adopted in 1996 and has been embraced by most jurisdictions in the Western World. Generally speaking, electronic contracts are valid where there is an explicit offer and acceptance to the contract. One notable exception as it pertains to real estate is when the contract must be registered. For example, electronic signatures and contracts are valid on leases that are not registered in the land titles office and on purchase and sale documents (including offers and counter offers). However, to register the transaction on title requires original signed documents rather than an electronic signature.

There are other instances where electronic contracts are not valid, such as wills, powers of attorney, certain business and financial documents, etc. so it is best to consult with your lawyer to determine your use of electronic contracts and signatures.

Is there a requirement to maintain electronic data for a certain time period?

Since electronic contracts are often viewed the same as paper contracts, the retention guidelines for electronic contracts (and electronic signatures) would be the same. Therefore, it is important to ensure proper back-up and retention of all electronic documents, and the keepers of these documents must be aware of the retention requirements.

The best practices for using electronic contracts and signatures include:

  • an explicit understanding and prior notification between the parties that an electronic contract and electronic signatures (“e-signatures”) will be used.
  • That all privacy regulations are upheld regarding the contract and the gathering of e-signatures, and
  • maintaining accurate records concerning the use of the contracts.

How does all this apply in commercial real estate?

Obviously, the convenience of being able to conduct a wide variety of activities and transactions electronically can speed a transaction. The use of electronic signatures also means that the parties are no longer desk-bound. They can conclude a transaction anywhere, and at any time.

One frequent downside inherent in electronic contracts is that they are not tactile.  Many times the contract is misfiled, deleted or simply forgotten since it can easily reside inside an email or a misnamed computer file.  On less sophisticated systems, such as stand-alone computers, laptops and mobile devices, system failures or upgrades and result in the complete data loss of the contract.

Large organizations, such as landlords and occupiers with multiple locations, may have entire departments dedicated to the retention, management, and safekeeping of all their contracts, including electronic contracts.

Entrepreneurs and smaller operations, such as many tenants, often do not have these types of systems and policies in place, and are at a greater risk of losing data, or – more importantly – losing track of important contract information, such as important lease obligations and rights.

This is understandable, since the ‘virtual’ contract is often out of sight and out of mind.  Many times, the tenant’s lease and commercial space is taken for granted as something that was completed previously (perhaps the lease was signed years ago) in order to allow the tenant to operate daily, today. It simply is not top of mind. The risks of this can be devastating however. Imagine that you have an option to renew the lease, for example. If you miss the time to exercise that option you could lose your space – and that could mean the end of your business.

To solve this very real and prevalent problem it is important to keep track of lease milestones, obligations and rights as well as maintain a back up of your lease contracts – or have someone do that for you.

We offer our clients a simple and affordable lease management service to handle all this for you, and more; for less than 50 cents per day. To learn more CLICK HERE.

Don’t Simply Sign Estoppel Certificates

The article below, by two lawyers at BLG in Canada, and reprinted with their permission, highlights the pitfall of simply signing an estoppel certificate provided by the Landlord.

An estoppel is a concept that, in certain circumstances, restricts a party from relying on its full legal rights. A lawyer conversant in contract law will tell you that there are many different types of estoppels and that there is no one universally accepted form of estoppel. However, the seemingly simple one or two page estoppel is a very powerful legal document, as you will see.

For the purposes here though we will stick with estoppels as they are commonly used in commercial real estate. The most common estoppels are provided by the Landlord to the Tenant when the Landlord is engaged in a transaction whereby another third party is going to rely on the lease contract provided to it by the Landlord. Generally, this happens if the Landlord is selling the property and the intended purchaser wants to know that the lease contract is the only agreement between the Landlord and you, the tenant; or when the Landlord is seeking financing (or refinancing) and the lender also wants assurances that the contract is the only valid agreement in existence.

You can understand why a third party wants this verification. Most landlord-provided estoppels outline the basic business terms, such as the length of the lease, the rent being paid, etc. The document the landlord wants you to sign also contains seemingly innocuous language; which can be problematic as the article points out.

Therefore, it’s important to understand from a business and real estate perspective what should be included in the estoppel if it is not clear, and what should not be included. We recommend that any estoppel you receive from the landlord be reviewed by a commercial real estate consultant – not a real estate agent as they do not deal with estoppels; and after that review, it should be reviewed by a good commercial real estate lawyer, such as either of the article authors.

Before we get to the article itself, it may help to look at a case where the Greenstead Consulting Group was asked to review a landlord’s standard estoppel provided to a tenant client, because the current landlord was selling the property.

The estoppel contained language that said neither the tenant nor landlord were in default of the lease. We knew from prior correspondence that the floor of the premises was heaving and a technical study done by the landlord revealed sub-standard soils compaction below the on-grade slab.

After we reviewed the lease, we also noted that the landlord was solely responsible for ‘latent defects’ in the construction of the building.

The landlord was pressing our client, the tenant, to sign what the landlord referred to as a ‘clean estoppel’ (without any changes to the form the landlord provided) within the 10 days provided in the lease. As a directly related aside to the issue at hand, we negotiate lease wording amendments on behalf of tenant clients. In the estoppel section of the lease we add the ability for the tenant to amend an estoppel form provided by the landlord. Watch for language that states the tenant will sign the form of estoppel attached to the lease. That could be problematic.

Working with our client’s in-house general counsel, we advised our client to strike certain provisions of the estoppel and provide an addendum outlining the issue, and past correspondence. We advised our client that without doing this, we were concerned that a subsequent owner would say the tenant was stopped (estopped) from making a claim for repair by the property purchaser, since the current owner had not fixed the issue.

Peter D. Morris, CEO, Greenstead Consulting Group

Here is the Article:

The Ontario Superior Court’s judgment in 1960529 Ontario Inc. v. 2077570 Ontario Inc., 296 Brunswick LP Corp., and CMLS Financial Ltd. 2017 ONSC 5254 provides a cautionary reminder to tenants to carefully review their lease before signing an estoppel certificate.

Background

1960529 Ontario Inc. carried on business as a bar and game arcade using the name Tilt Arcade Bar (“Tilt”). Tilt, the tenant, leased the first floor of the property located at 296 Brunswick Avenue, Toronto, from the landlord, 2077570 Ontario Inc. (“207”). The lease between Tilt and 207 contained a right of first refusal provision which stated that 207 agreed to provide Tilt with a copy of an offer to buy the building prior to accepting any offer for the sale of the property and that Tilt would have 24 hours to provide 207 with an offer that was the same as the offer that 207 intended to accept.

On October 17, 2016, 207 entered into an agreement of purchase and sale with 296 Brunswick LP Corp (“Brunswick”) for the sale of the property. On February 14, 2017, the President of 207 attended at the property with a form of estoppel certificate informing Evan Oswald (“Oswald”), Tilt’s President, that the property had been sold and that the estoppel certificate was required immediately to effect the assignment of the lease from 207 to Brunswick.

The estoppel certificate was addressed to CMLS Financial Ltd., Brunswick’s lender (the “Lender”). 207 was identified as the landlord, and Tilt was identified as the tenant. The estoppel certificate confirmed that there were no defaults under the lease. No reference to the right of first refusal was made in the estoppel certificate. Oswald, who didn’t realize he had a right of first refusal under the lease, signed the estoppel certificate.

The property was transferred from 207 to Brunswick on February 17, 2017. Brunswick then exercised a demolition provision in the lease and gave Tilt notice of termination. It was only at this point that Tilt realized that it should have been given the right to buy the property pursuant to the right of first refusal in the lease. Tilt commenced an application seeking relief in support of its claim for enforcement of a right of first refusal. Tilt also brought a motion for injunctive relief restraining Brunswick from demolishing the property, which was the subject of this decision.

Court Decision

The Court denied Tilt’s motion for an interlocutory injunction on the basis that there was no serious question to be tried. The court explained that Tilt waived its right of first refusal by signing the estoppel certificate and confirming that there was no default under the lease at the time the estoppel certificate was signed (i.e. the landlord was not in breach of any of its obligations relating to the right of first refusal). The Court stated that parties to a commercial real estate transaction are entitled to rely upon an estoppel certificate to prevent the party signing the certificate from taking a position that is contrary to the statements therein. By signing the estoppel certificate, Tilt must be taken to have known that the parties affected by the sale of the property would rely on the contents thereof.

Comment

This case is an important reminder of what can happen to tenants when they fail to review their lease before signing an estoppel certificate. Tenants can be viewed to waive their existing rights if they are not careful. In this situation, Tilt could have potentially prevented Brunswick from purchasing the property had it identified the landlord default in the estoppel certificate before signing.

This case is also a reminder that even though an estoppel certificate is addressed to a particular entity/individual, it does not necessarily prevent a non-addressee from relying on the estoppel certificate.

Tenants should always be mindful of all of their rights under their lease and ensure that they are aware of the purpose for which an estoppel certificate is being sought. This will allow tenants to see the “big picture” relative to their existing leasehold rights.

Authors

Richard A. Manias 
RManias@blg.com
416.367.6668

Anthony Deluca 
ADeluca@blg.com
416.367.6323


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How to Handle the Recovery of Corporate Costs in Triple Net Leases

The generally accepted rule of thumb concerning the concept of Triple Net Operating Costs is that the landlord can and should recover all costs associated with operating the common facilities of the property. These costs would include all those costs to manage, operate, secure, repair and maintain the facilities, with the exception of structural costs in most instances.

Conversely, costs associated with the landlord generating income and profit should be borne out of the basic, or minimum, rent. For example, costs associated with the process of leasing space should not be recovered from the tenants.

While it may appear that this is a simple concept, it rarely is straightforward. As an example, some people feel that any costs borne by the landlord, at a level above costs incurred at the property itself, should not be included in Operating Cost Recoveries. But what if it is more efficient to have centralized services such as accounts payable, IT and HR or regionally based maintenance services? Should these be included as recoverable Operating Costs and borne by the tenants? If so, to what extent should they be included and does the market use any standardized guiding principles?

These were the questions I recently discussed with an experienced commercial real estate lawyer and an accountant who specializes in CRE at an international accountancy.

We had combined CRE experience of over 100 years between the three of us and we agreed there was no accepted single standard in answering this question, except one person’s apt response that it is whatever the landlord can do, and the market will bear. We all agreed that seems to be the sentiment. But let’s look at these questions in more detail.

First, should regional and corporate costs incurred for the benefit of the common facilities be included as recoverable Operating Costs?

The feeling is yes, they should; if those costs are aligned to the benefit of the common facilities and not for the landlord generating profit. For example, it may be impractical from a cost and governance perspective to have all the accounts payable performed at each property in a portfolio.

Likewise, it may be more practical and cost beneficial to have roaming maintenance staff rather than staff dedicated to each property, particularly when dealing with skilled trades. Those costs – with certain caveats concerning competitive pricing – should rightly be recovered from each property served.

The second question of what extent should they be recovered can’t be answered until we tackle the issue of common guiding practices, as the two are intertwined.

Let’s look at accounts payable as an example. The invoice is received, reviewed, approved, entered into the accounting system, and a cheque is issued, in a typical accounts payable process. The cheque is then mailed and the bank reconciled once the vendor has cashed the cheque, and it is cancelled and returned.

Several people may ‘touch’ the process, from the person opening and sorting the mail to the person handling the bank reconciliation. Additionally, there are costs associated with the hardware & software used, IT support, space to house the staff, desks, communications equipment, stationary, mailing costs, etc.

Estimates to completely process one invoice range up to $21.00; while the average is $7.00 and as low as $3.41 if using a state of the art AP system, and depending on the number of invoices processed.

The question then becomes: “What method is acceptable to allocate the costs?”

In this case, is it on a per invoice basis? A proportionate share of the total costs? Some other method?

Again, we found there is no singular answer. So perhaps the pundit was correct when he said, “it is whatever the landlord can do, and the market will bear.”

We did agree that certain regional and corporate expenses should be considered for full or partial recovery. These include costs associated with:

-staffing relative to the management, operation, security and R&M of the property;

– technology costs including hardware, software and IT support staff;

– tools and equipment used for the maintenance and repair of the property;

– occupational health and safety expenses, including training;

– certain marketing costs, as permitted under the leases;

– insurance and risk management costs;

– daily banking costs pertaining to Operating Cost AP;

– services that support the above, such as HR, accounts payable, etc.; and

– costs to house and equip centralized and regional services noted above.

We also agreed that the extent of the recovery would be limited by what the market would bear. And that is a far more difficult question to answer because it is also subjective. The landlord may not optimize the recovery, or open themselves up to arguments from tenants (and their lease auditors) concerning the allocations depending on the formula used to calculate and allocate the costs.

For example, consider the issue of two same-sized buildings in different parts of the same market where the competitive operating costs recoveries in those submarkets are different. Think about the implications of attempting to come to a universal cost allocation across different asset classes. Industrial properties have lower operating costs than office buildings, and can’t bear the same per square foot allocation (if done that way), for example.

The combinations and permutations become mindboggling.

We also tackled the inevitable retort from tenant representatives and corporate real estate executives who would argue that the management fee is intended to cover the centralized costs.

Our feeling was that the management or administration fee is in addition to all the costs associated with operating the common facilities. As a result, it is not to replace any of those costs; which is the effective argument of the tenant representative.

Stated differently, the landlord is assuming the management of the common areas so the tenants don’t have to manage all those functions themselves, collectively; and the administration fee is akin to compensating the landlord for overhead costs not directly associated with the property operation.

Did we come to a definitive conclusion? Not really, but the discussion prompted further research, contemplation and discussion, I’m sure.

What are your thoughts?

© 2017 Peter D. Morris

www.GreensteadCG.com

Peter D. Morris comments on the closing of Sears in Canada

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

https://www.retail-insider.com/retail-insider/2017/10/sears-canada?utm_source=Retail+Insider+Newsletter&utm_campaign=bcf3861251-EMAIL_CAMPAIGN_2017_10_11&utm_medium=email&utm_term=0_659c2a0c20-bcf3861251-113728729

 

Peter Morris Speaking at REALTOR® QUEST 2016

Peter D. Morris, the founder of Greenstead Consulting Group has been invited to conduct two leasing training sessions at the upcoming REALTOR® QUEST forum hosted by the Toronto Real Estate Board on May 4 & 5, 2016.


Photo courtesy TREB

Over 8,000 real estate professionals attend REALTOR® QUEST, Canada’s largest REALTOR® Trade Show and Conference. REALTOR® QUEST 2016 will occupy over 280,000 square feet of space at the Toronto Congress Centre, South Building.

CNL Lifestyle Properties, Inc. Engages Us to Reposition Whistler Creekside Village

Creekside Village, Whistler, BC

Creekside Village, Whistler, BC

The owner of Whistler Creekside Village has engaged BC based Greenstead Consulting Group to assist in developing a repositioning and remerchandising plan for the property to better address the needs of both residents and visitors to Whistler.

“The opportunity arose to make significant and, we believe, positive changes to the offering we present at Creekside Village”, said Ryan Bell, the Director of Asset Management for the owner, CNL Lifestyle Properties, Inc. “A number of leases expired and we made the conscious decision to develop a scheme to replace those uses to better compliment our existing tenants such as Creekside Market, BC Liquor, Scotiabank and Starbucks, to name a few.

After an internal planning session, Greenstead Consulting Group was hired to refine a repositioning and merchandising plan for the property.

According to Greenstead founder, Peter Morris, Creekside Village is ideally suited to provide a different experience to the common brand name retailers found elsewhere in Whistler. He suggested that Creekside Village will be seeking tenants that are unique and/or offer something quintessentially Canadian, resulting in a ‘must visit’ reason at Creekside Village.

“The better quality hotel accommodations adjacent the property cater to an affluent, luxury family clientele who appreciate the opportunity to uncover something new and different as compared to the mass chain stores”, said Morris.

Morris stated that the preferred merchandise mix includes a signature restaurant; a salon/spa; unique art and gift gallery; quick service food outlets, with either a healthy food option or a menu of wide appeal; resort or adventure wear and a lounge, craft brew pub, wine bar or speak-easy atmosphere location to cater to those wanting somewhere to go in the evening.

According to the recently produced Whistler Chamber of Commerce Commercial Lease Report that provides a snapshot of current rates and operating costs rents in the Creekside Village area are less than in the Village Square, where they can be as high as $125 per square foot according to the report. Morris believes this is one reason his client will be able to find the right tenants.

“Even with the high rents demanded in Village Square, tenants still have to advertise to attract customers and the combined costs compound the risks of doing business in Whistler. Alternatively, if you locate your ‘must visit’ type of concept in a property with less rent, you can still spend on advertising to attract customers and the overall risk is reduced,” Morris said.

Simple Ways to Improve Operating Returns for Retail Property Owners

Graph  It doesn’t take a business degree to know that to improve operating return at the corporate or property level means revenues must increase, expenses must decrease or a combination of the two. Aside from the obvious question of occupancy, we’ll explore some other aspects to improving returns.

At the company/enterprise level removing waste, eliminating redundancy and cost containment are all common sense ways to add value. As is a serious review of the debt structure and financing options. Another avenue to explore is to examine the company’s sacred cows – policies and processes that have been implemented over time. Some may no longer be needed or the methodology may be outdated. Challenging the status quo may reveal hidden opportunities. For example, I’ve long advocated that the way property management services are delivered to both the owners of property and their tenants is completely outdated and is actually hurting tenant renewal rates and property returns. Moreover, by realigning staff duties in the manner I have suggested, management companies can reduce their overall costs of service delivery by as much as 15%.

The way leases are structured and the mechanics of them can also improve value. In the early 1980’s Cadillac Fairview, a leading mall developer and owner, instituted an across the board HVAC basic charge. It was a sinking fund established to pay for the replacement of roof top units, air handlers, central plant equipment, etc. The concept was drafted into the company’s standard lease form and used for all future new leases. There are many other items in the way a lease is structured that can have a positive impact on returns; such as how renewal options are treated, how the space is used and measured, and how amortization and depreciation costs are handled.

For example, many landlords provide for a recovery of amortization in their leases, but few also specifically note that the landlord should also recover an interest cost on the amortization. When explaining why the landlord should receive an interest component to the amortization, I liken the capitalized (and then amortized expense) to a loan to the common area to the benefit of the tenants. If a tenant pushes back I provide this example.

“Lets assume the landlord will need to replace the roof membrane, the cost of which is, say, $250,000. This is a recoverable expense, but the tenant doesn’t want to be charged with their portion of a $250,000 expense in one year; so the expense is repaid through amortization of, say 10 years. The landlord is out of pocket the initial expense and won’t recover that expense for 10 years. Effectively, the landlord is lending the tenants the $250,000, and just as with any loan the tenants should compensate the landlord for that through interest.”

These are just a few areas of more than a dozen lease refinements I’ve developed for companies I’ve worked with over the years.

One of the biggest lifts in return and value is to change the way lease rates are determined. Many owners and leasing agents for shopping centers still rely on comparable analysis to be the sole determiner of the basic rent. This is a mistake. Rent should be a function of sales – not to be confused with the concept of percentage rent. Using sales as the method for determining base or minimum rent it is possible to create a rent structure that is as much as 35% above comparable rents, based on my personal experience. There is a specific methodology to achieve this. It starts by understanding the market potential in the trade area served and relies on obtaining sales information from each tenant, even if they do not pay percentage rent.

There are a number of opportunities at the property level too. For example, the Greenstead Consulting Group has developed and implemented over 20 different ancillary income streams at the property level. Some produced significant revenues while others did not; but collectively the effect was the same as adding two or three rentable store spaces to the property– without the infrastructure costs.

Another area of additional income from retail properties is through creative densification. The land-mass for retail properties is very large compared to the vertical nature of office buildings. Much of this is dictated by parking ratios mandated in zoning requirements. The typical 5 stalls per thousand square feet of leasable area has been in use for more than 30 years, yet the nature of retail has changed dramatically over the same time. In the 1970’s evening shopping was usually confined to one or two nights a week and virtually no one shopped on Sundays. That parking ratio may have made sense then but does it make sense with the expanded shopping patterns and channels of today?

We convinced a municipal council to adopt a new micro stall designation to accommodate the new ultra small cars, such as the Smart car, and to include designated motorcycle parking as part of the overall parking ratio. Decreasing the average stall size allows for more stalls on the same piece of land. Even with the existing stall ratio, the increase in the number of stalls permits further development on the site. In another densification program increased the site densification that resulted in an $8 Million lift in the property value because the site development could be easily intensified. This improvement came with no additional infrastructure cost, such as a parking structure.

On the expense side of the ledger there are many opportunities to reduce expenses. One that is not widely practiced but that can pay significant dividends is lean maintenance, a concept borrowed from lean manufacturing practices. In lean maintenance there is an understanding that some common maintenance practices have diminished value through the lifecycle of the physical plant. Correcting this is the same as reducing the waste that was inherent in older manufacturing processes.

Repositioning and remodelling can have a positive impact on the revenue and expense of a property. Curb appeal determines customer attraction and what tenants perceive as a desirable location. So we never advocate trimming expenses to the point of harming the impression of the property. This includes capital expenses. However, the timing of the program is critical to obtain the best returns. It is also important to conduct a complete cost benefit analysis and judicious value engineering. Sometimes, just as in theatrical staging, some inexpensive changes can have a dramatic impact on the look and perception of a property.

Improving returns and value is what we do best. Contact us to learn how to transform your investment returns in retail real estate.