Retail Real Estate Law Issues Leasing, Buying, Selling, Financing

Time 2020-10-31 20:04:22

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Retail Real Estate LawRetail LeasesAbout Our FirmRetail Real Estate Law RuminationsParting Is Such Sweet Sorrow That I Shall Say Goodnight Till It Be MorrowOctober 18, 2020 By Ira Meislik Leave a CommentPrintAbout ten years ago, it would have been audacious for me to set a goal or target of 500 blog postings. Yet, that’s what I did. Now, last week, the 500th was published. Having reached that goal or target, I have placed my quill on the shelf, so to speak. Yes, there no longer will be weekly editions of Ruminations from this pandemic “bat cave.”From time-to-time, we may be “moved” to Ruminate or possibly republish an oldie, but a goody. No promises.Over all of these years, I’ve learned a great deal more from you than you could possibly have learned from my writings. After all, I am just one person, but “you” number in the thousands. So, THANK YOU, THANK YOU, and THANK YOU.Through Ruminations, I’ve met a lot of new friends, both “virtually-online” and in person. Over the last 10 years, many readers have reached out to me by email or telephone, and I’ve been treated to meeting others at industry meetings. Once, I even met a reader who was visiting the house of worship I attend – sitting directly behind me. I guess it’s true that you have to behave at all times because you never know who will be watching. I’ll try to put that lesson into use.Your thousands of comments of the years have enriched me. Your kind words have encouraged me. Your use of my postings in law school courses, at seminars, and in other publications has flattered me. Your proofreading and other suggestions have improved me.And, I have a gift in return: this, the shortest Ruminations blog posting ever.Yours for the sport (yes, that’s what I call it),IraPrintFiled Under: Uncategorized Where Were You When The Revolution Began? – Revisiting How We Work Our DealsOctober 12, 2020 By Ira Meislik Leave a CommentPrintIn 1970, the Harvard Business Review published an article by Peter Pyhrr in which he promoted the idea of zero-based budgeting. Different descriptions of this approach have been offered. Most explain that one should begin each periodic budgeting process tabula rasa – with a blank slate, and then justify every expense anew, not just adjust the last period’s budget by adding or removing items. A simpler explanation is that one should “rigorously review every dollar” in each successive budget. We doubt many have truly adopted this approach. It’s just too much work. It’s easier to cut and paste last year’s budget. In fact, momentum causes a repeating of last year’s expense items. Perceived “new” needs often result in just adding more expenditures each year. Only when income shortfalls force a review, do items get dropped. [Read more ]PrintFiled Under: Buying and Selling Properties, Financing Properties, Retail Leases Tagged With: Agreements, Contracts, Drafting, Landlords, leases, lenders, mortgages, negotiation, shopping centers, TenantsLiquidated Damage Remedy Or Just A Bargained For Higher Rent?October 5, 2020 By Ira Meislik Leave a CommentPrintThough today’s posting isn’t really about “radius restrictions,” that’s what’s behind today’s observations about liquidated damage lease provisions. A radius restriction is a restrictive covenant. Thus, they have to be reasonable as to distance, duration, and scope. We’ve seen few modern cases centered on those parameters. So, we think restrictions that are coterminous with the lease term are reasonable as to time. Distances corresponding with a shopping center’s market area also seem reasonable. Limiting their scope to a lease’s use clause also seems to pass muster. [Read more ]PrintFiled Under: Retail Leases, Retail Real Estate Law Tagged With: Agreements, Contracts, Damages, Drafting, Landlords, leases, remedies, retail real estate law, shopping centers, TenantsKick-Out Clauses as Circuit Breakers – A Contrarian ViewSeptember 27, 2020 By Ira Meislik 2 CommentsPrintHere at Ruminations, we often short-cut any deep thinking about proposed agreements or about provisions within those agreements when we see something we call a “circuit-breaker.” For example, we don’t drill down into rent damage clauses when a lease’s term is one year. After all, it takes time for a tenant to fail, and how much time will really be left on the lease after that date? The same goes for an agreement that allows either party to terminate it on 30 or 60 days’ notice for any reason or no reason at all. Why cogitate when a party can “kick-out” of an unfavorable agreement or relationship? [Read more ]PrintFiled Under: Financing Properties, Retail Leases, Retail Real Estate Law Tagged With: Agreements, Contracts, Drafting, Landlords, lenders, negotiation, retail real estate law, shopping centers, TenantsSLOOOOOOOW Mail ….. FuhgeddabouditSeptember 21, 2020 By Ira Meislik Leave a CommentPrintWe’re all seeing and hearing clashing views on why the Postal Service’s delivery times are lengthening. Those views may differ, but there doesn’t appear to be any meaningful dispute that it now takes longer to get a letter than we’ve experienced in the last 30 or more years. We’re not going to get involved in the morass of election debates. Instead, Ruminations wants to cut through all of that fog and remind our friends that our mailed notices aren’t getting there as fast as they used to “get.” Worse for our industry, certified mail almost always took longer to reach its destination than “plain” first-class mail. So, when you read about how long the mail is now taking (and there’s been some private testing confirming longer delivery times), add more time if you use certified mail. And, if the commanding document demands “registered” mail, realize that “registered” is not “certified” mail. It takes even longer to arrive at its destination. [Read more ]PrintFiled Under: Buying and Selling Properties, Financing Properties, Retail Leases, Retail Real Estate Law Tagged With: Agreements, Contracts, Drafting, Landlords, leases, mortgages, notice, retail real estate law, TenantsThe Chickens Come Home To Roost – Pretext And Tenant Control Over DevelopmentSeptember 13, 2020 By Ira Meislik Leave a CommentPrintAccording to Lawrence Peter “Yogi” Berra (May 12, 1925 – September 22, 2015), late of Montclair, New Jersey, “You can observe a lot by just watching.” That’s how we get our “experience” by watching what we ourselves have done and by what others have done. We can learn from those experiences, “ours” and “theirs.” That’s one reason we read court decisions. Doing so allows us to safely observe what others have done without getting burned, even when the situations covered by these decisions invoke another Yogiism: “It’s deja vu all over again.”We came across a late August court decision out of the U.S. District Court for the Northern District of Alabama. It involved a lease dispute at an enclosed mall, one emblematic of the history of such malls. At 300,000 square feet, it opened in 1970 with 32 inline tenants and two department stores as anchors. By 1982, one had disappeared and its parent company soon followed. The following year, a national retailer relocated its own department store from downtown to the now-vacant space. In the mid-1990s, plans were made to expand the mall, based in part on the addition of a third department store building. Some physical impediments delayed those plans and then the contemplated additional department store chain was acquired by yet another. This resulted in a further delay. But, the mall’s expansion opened in 2000, and the mall grew to 700,000 square feet of space. [Read more ]PrintFiled Under: Buying and Selling Properties, Retail Leases, Retail Real Estate Law Tagged With: Agreements, Ambiguity, Contracts, Drafting, Landlords, leases, negotiation, renewal options, retail real estate law, shopping centers, TenantsDocument Creep – Longer, But Not Better?September 6, 2020 By Ira Meislik 4 CommentsPrintCongress ordered that the Declaration of Independence be “fairly engrossed on parchment.” [“Engross” means to “write in a large, clear hand.”] In olden days, lease, notes, mortgages, purchase and sales agreements, and all other documents were also “engrossed,” though unfortunately for researchers, not always in a large, clear hand. Then, copies were made. Where money was short or where the perceived value was absent, those copies were also made by hand. This is a craft no longer in much demand. For more important documents, a printer’s services were used, both for original documents to be executed and for copies of handwritten ones. The reproductions weren’t always faithful to the originals. For example, an early printing of the Declaration of Independence omitted one of the signatories. He was Thomas McKean, and he served as a President of Congress, President of Delaware, Chief Justice of Pennsylvania, and Governor of Pennsylvania. That was no small omission, and to more than just his family.Our early handwritten legal documents had another thing in common with the Declaration of Independence. They were sparse. There were only 1,458 words in the Declaration, fewer than the average length of Rumination blog postings. [There is a message there, one we’ll ignore.] Here we have a founding document, a revered one (the Declaration, not this blog), yet it is remarkably short. So were leases before typewriters came into everyday use. With their introduction, it became easier to “include and expound.” Combined with the help of carbon paper and onionskin, faithful copies were now economically available. No longer would the copy differ from the original (other than when it came to margin notes and interlineations, a problem sometimes still seen). Along with these advantages, economy, speed, and faithful copies, the documents grew in length.  [Read more ]PrintFiled Under: Buying and Selling Properties, Financing Properties, Retail Leases Tagged With: Agreements, Ambiguity, Contracts, Drafting, mortgages, negotiationHow Long Do I Have To Wait?August 30, 2020 By Ira Meislik 5 CommentsPrintThere’s a song, Hesitation Blues, first recorded in 1916, that begins with this line: “How long do I have to wait?” It is also a question often asked when a lease or other agreement is silent as to a deadline or permissible period. And, almost always, that question is asked when something has gone wrong. That’s evidence it should be asked at the outset when people memorialize their agreement or expectations.We just looked at an August 12 decision by a New York lower court. In it, the judge wrote what is generally the law: [Read more ]PrintFiled Under: Buying and Selling Properties, Financing Properties, Retail Leases, Retail Real Estate Law Tagged With: Agreements, Ambiguity, Contracts, Drafting, Landlords, leases, lenders, negotiation, retail real estate law, shopping centers, TenantsNext Page Subscribe here for automatic updates.Leave This Blank:Leave This Blank Too:Do Not Change This:Your email:Thank you for your interest.Follow Us!Topics

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Retail Real Estate Law is a subject and worthy of discussion. Whether you are an attorney involved in retail real estate transactions, a tenant, lessor, mortgage institution, or real estate broker, these laws affect you.

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