Real Estate Advisor Law Blog

Real Estate Advisor Law Blog

Not Just My Kids Who Need (Want) Larger Allowance

Posted in Leasing Issues, Uncategorized

Glass jar full of money with a white allowance labelThe new IRS repair regulations can impact how tenant allowances are structured.

Traditionally, landlord and tenants have relied on the Section 110 safe harbor so that provided the allowance is spent on leasehold improvements, the allowance is not taxable to the tenant and the landlord depreciates the leasehold improvements over 39 years.

Under the repair regulations, the landlord may get to expense, rather than depreciate over 39 years, certain improvements if it can meet certain conditions. Note that a landlord can deduct larger expense items if the landlord has audited financials. In order for the repair regulations to apply, the tenant allowance should be structured to fall outside the Section 110 safe harbor. However, the allowance will still not be taxable to the tenant as long as the landlord owns the property and the tenant only uses the allowance for leasehold improvements and qualifying related costs.

The repair regulations may be helpful for larger landlords without hurting tenants. It is worthy of note because it is rare that regulations are ever adopted where one side is helped without a corresponding cost to the other.

And while you are thinking about the tax treatment of an allowance, it may be helpful to remind tenants that any portion of the allowance not spent on leasehold improvements and qualifying related costs which will be owned by the tenant is taxable to the tenant in the year received. So, in a ground lease situation where the tenant builds the building and the costs are paid for by the allowance, the landlord must own the building and get the depreciation (or deduction under the repair regulations, if applicable) or else the allowance will be taxable to the tenant. The repair regulations do not change the treatment of the allowance for the tenant.

Hot or Not?

Posted in Uncategorized

fire active

 The future of Radio Shack appears to be in jeopardy. The news got me thinking about the hot retailers to target as replacements, or just to target as draws for your center.

  1. Apple store.  No duh. Every Apple store is incredibly successful. They generate large sales because they have great products and provide a great retail experience for the customer. And this is not just a fad. Apple is probably here for a while.
  2. Health Food Restaurants.  Restaurants are now key components for any vibrant center and the health food category is relatively new with few players, and under-represented in most centers. True Food Kitchen, LYFE Kitchen and Northstar Café are great draws and great restaurants.
  3. Lululemon.  My kids love their clothing, and they don’t even Yoga. Lululemon goes well when paired with health food restaurants too.
  4. Beer and Wine.  Bars and restaurants specializing in a large variety of craft beers, are great draws – think Yardhouse and Pies & Pints. Life is too short to drink cheap beer. (Although I will admit that Miller High Life is my house brand.) Beer is not just for breakfast any more. You get the idea. Along the same lines, wine bars and wineries are great attractions – think Cooper’s Hawk. Man can not live by beer alone.
  5. Nordstrom.  Department stores are less ubiquitous than in the past, but having a  Nordstrom in your center is a huge win. Nordstrom is a very definite draw and provides a great retail experience for its customers.
  6. Anthropologie.  Scott Fox of Steiner + Associates says his kids love this store, even if they can’t afford to buy anything there.  Anthropologie is a draw: it attracts both shoppers and other retailers who want to be in the same centers.  And more often than not Scott is buying his kids the stuff they can’t afford.
  7. Fast Casual.  Big growth in this segment. Chipotle, Piada, Fusion, and Noodles & Co. are examples and they are always busy.
  8. Amazon.  You can buy anything on Amazon, and you can get it cheaper than anywhere else. I just have a suspicion that Amazon will branch out to have brick and mortar locations very soon. Given their performance in internet sales, you would have to think they would succeed with retail stores too.

 These are just a few that came to mind. Put these in your center, and at least you will get me to come.

Potential Changes Coming to the Ohio Condominium Act

Posted in Condominiums, Legislative Update
Denice Hertlein, CPA Clark Schaefer Hackett

Denice Hertlein, CPA
Clark Schaefer Hackett

Thank you to our friend Denice Hertlein of Clark Schaefer Hackett for insightful comments relating to Ohio House Bill 371 which has the potential to place more requirements on condomninium associations and their officers and managers. Being volunter organizations, House Bill 371 has the potential to deter active participation by owners in condomiminium associations by requiring new record keeping and procedural requirements on associations. While lawyers generally love more regualtion and procedural requirements, I am not sure that the issues House Bill 371 is intended to address are so pervasive that additional legislation is necessary. If you live in, manage, develop or finance condominiums you are advised to follow House Bill 371 and speak with your state representatives.


Posted in Hospitality, Hospitality Industry Issues, Retail Industry Issues
Brad Kaplan  Hospitality Industry Practice Contact

Brad Kaplan
Hospitality Industry Practice Contact

After many years of serving the hospitality industry in various capacities, we have brought all of our skills and experiences under one roof as we have formalized our Hospitality Industry practice to serve the growing needs of our hospitality industry clients. The hospitality industry defines “client service.” We work with our hospitality clients – hotel, restaurant, entertainment and gaming, among others in all aspects of their businesses. Visit our website for more information or look for one of our Hospitality lawyers at any of the many industry conferences we attend, including The Lodging Conference and the ALIS Conference.


Posted in Uncategorized

iStock_000007849551SmallNow that The Ohio State Buckeyes have won the National Championship and proven that we in Ohio ARE the best in college football, it made me think about what else we do great in Ohio:

  1. We are the Mother of Presidents. More of our country’s presidents come from Ohio than any other state. William Henry Harrison, Ulysses Grant, Rutherford Hayes, James Garfield, Benjamin Harrison, William McKinley, William H. Taft, and Warren Harding – eight in all.
  2. We make great beer. Great Lakes Brewing Company, Mad Tree Brewing Company, Rhinegeist Brewery, Christian Moerlein, Thirsty Dog Brewing Company, Hoppin Frog Brewery and Jackie-O’s are some great Ohio-brewed beers I have tasted (ok, I know, I never just taste beer). We also are home to Hudy Light and Little Kings, and no other state can say that!
  3. An inordinate number of great businesses are headquartered here. Macy’s, Procter & Gamble, Kahn’s, Kroger, IMG, Wendy’s, the Limited, Nationwide Insurance, Jo-Ann Stores, Goodyear, Owens Corning, among others. All important multi-national business. All headquartered in Ohio.
  4. We have the greatest coaches. Urban Meyer, Bobby Knight, Chuck Noll, the Harbaugh brothers (even if one of them now coaches at that school up north), Don Shula, Jon Gruden, Ara Parseghian, Don Zimmer, Branch Rickey – just to name a few – all from Ohio. Clearly, if you want to be a great coach someday, you better move to Ohio quick.
  5. We have truly great restaurants. Boca in Cincinnati may be as good a restaurant as any you will find anywhere in America. And any one of Cameron Mitchell’s restaurants in Columbus will be awesome. (The Pearl may be my favorite – besides incredible food they serve little Miller High Lifes with their Bloody Mary.) In Cleveland, I like Lola and Fahrenheit, but there are obviously a number of other world-class restaurants. And don’t forget the world famous Pine Club in Dayton. On a per capita basis, we have more great restaurants in Ohio than anywhere else.
  6. Professional sports is practically centered in Ohio. The Pro Football Hall of Fame is in Ohio, the first professional night baseball game was played in Ohio, the Big Red Machine was the best pro baseball team in history, and of course Paul Brown, the father of professional football, and Lebron James, the greatest basketball player ever, are from Ohio.
  7. We have the largest mound. The Miamisburg Indian Mound, is a perfect cone shaped mound. At 65 feet high, it is the largest in the United States. So we got that going for us.
  8. We are home base for Ulmer & Berne. One of the greatest law firms in the entire world has headquarters in Cleveland with offices in Cincinnati and Columbus (and Chicago, Illinois –our Ohio qualities must have rubbed off there because our Chicago office is really good too).

I know there are a number of other things great about Ohio. But you had to be proud of Urban Meyer and the Buckeyes. Incredible performance and incredible achievement.

Capitalization Rates Across the United States

Posted in Finance Issues, General Business Issues, Real Estate Tools

IRR Viewpoint 2015 Pages_2IRR Viewpoint 2015 Pages_3










Thank you to Integra Realty Resources, Inc.  for the above analysis relating to 2014 Cap Rates in the major U. S. metropolitan areas. As you will see the secondary markets like (Cleveland, Cincinnati, Columbus and Dayton) remain strong performers and attractive for investment. We believe that 2015 will be a banner year for investment in these markets by both domestic and foreign investors looking for well performing assets in stable markets. We hope to see you soon!

Real Estate Crowdfunding

Posted in Finance Issues

By now you have heard of Kickstarter or Indiegogo as tools for the creative class with little available capital to fund their ideas and dreams. But have you heard of Fundrise, Realty Mogul, RealtyShares or CrowdStreet ? Think of these and other real estate crowdfunding websites as the marketplace where small investors can tap into real estate investments made by the professional teams of real estate investors who operate the websites. Real estate crowdfunding differs from REITS in that a REIT is a pool of properties with little transparency to each individual property and its performance and often invest in very large projects. The crowdfunding investments are specific to a particular property and each investor can monitor the performance of the property and the management of the investment and the properties tend to be smaller.

While you might want to be investor, we think that many of our readers may be interested in the opportunities presented by this alternative sources of capital. Add these websites and similar websites to your lender/investor lists for your next project. The rates are going to be on the higher side (10-14%) but the cost is offset by the immediacy of the funding and ability to move your project ahead.

Either as an investor or as a borrower, read the fine print, do your due diligence and ask lots of questions. Some websites only accept accredited investors and all of the investments are setup as exempt offerings. So, while this may be a new channel for reaching out to investors and borrowers, the actual investment and loan may look just like we have seen for many years.

The link to the videos below are not an endorsement of  these particular websites, but presented only as an examples of the concept of real estate crowdfunding. Be careful and consult your professional advisors.

No More Detour!

Posted in Commuting, Development Issues, Transportation, Uncategorized


It’s not often that I receive a standing ovation when I drive over a bridge.  In fact, I don’t think that’s ever happened and that’s probably true for most people.  Today, though, I received one.

At 10:00 a.m. this morning, the Columbus Avenue Bridge which links Ohio City and the Flats in downtown Cleveland reopened after a 19-month replacement project.  Shortly after it opened, I crossed the bridge on my way to the Canal Road entrance of our Tower City offices.

Several people – presumably local residents and business owners most affected by the closure – lined the bridge applauding cars as the passed over the new span.  Workers from Sainato’s Restaurant stood outside the restaurant and provided the heartiest applause.  Sainato’s, which is located at the northern end of the bridge, likely suffered the most impact resulting from the lengthy rerouting of traffic off Columbus Road and away from the restaurant.

In a blog post dated May 29, 2013, I described that day’s commencement of the removal of the old bridge.  Trusting official sources, I reported an expected reopening of the bridge in June 2014.  After six months’ of delays due, in large part, to the need to recalibrate in place the heavy counterweights which raise and lower the bridge deck, the new, brightly painted structure is now in place.  Hooray for Columbus Road and its businesses.

Come Closer, We Have A Secret To Share With You…Fly Over States !

Posted in General Business Issues, Retail Industry Issues
Jason Aldean

It is no surprise to most real estate professionals that the industry is cyclical. 2008/2009 was rock bottom for the real estate industry. Slowly the industry has made a steady rebound thanks to the private investment. As in many recoveries, the primary major metropolitan areas mostly situated along the East and West Coasts have seen much of the activity in office, industrial, multi-family residential and hospitality. As cap rates in the primary markets have decreased along with investment opportunities, the secondary markets are looking like a very smart investment.

When you think of secondary markets think of metropolitan areas like Cleveland, Columbus, Cincinnati, Indianapolis, Louisville, Oklahoma City, Omaha, Minneapolis and Denver. Cap rates are strong, the local economies are robust and less affected by global volatility. While the activity in the secondary markets has increased, there remain many opportunities to invest in assets which look like a smart move compared to the familiar primary markets.

Another little secret is that transaction costs are typically less. Hence, you can pick up a higher yielding performing asset and not have to spend an arm and a leg to do so. Don’t just fly over us, stop and take a look around, we are sure you will not be disapointed.

Bourbon Street coming to Ohio?

Posted in Development, New Urbanism

The push in recent years for open container entertainment districts in Ohio, which would allow people to openly drink alcoholic beverages in designated outdoor public areas, took another step forward this past week. The Ohio Senate passed a bill permitting cities and townships with populations greater than 35,000 to create entertainment districts that are exempt from Ohio’s open container law. The designated entertainment districts could be as large as a half mile square. A similar bill was introduced to the House of Representatives but is not likely to be voted upon until the next session of the General Assembly.

The motivation behind such legislation is to provide a boost in tourism and entertainment spending in Ohio communities a la New Orleans’ Bourbon Street or Beale Street in Memphis. An influx of more visitors, proponents say, would lead to an increased demand for additional residences and retail establishments.

The concept would seem to work well with areas that are strictly restaurants and bars. However, an entertainment district in mixed-used neighborhoods would be faced with some practical challenges. Residents and businesses in an open container environment could be concerned about an increase in disorderly conduct and other criminal behaviors as well as creating rowdy evening crowds. Furthermore, containing the flow of alcohol within the entertainment district would likely necessitate closing streets to vehicular traffic and could result in disruptions to nearby communities and an additional burden on public resources.

There is some precedent for amicable co-existence though. The Banks entertainment district in Cincinnati is home to hundreds of residential units which are situated between two sports venues and above dozens of bars and restaurants. There have been frequent festival closures which have permitted partiers to carry open containers in the streets at the Banks with little disruption to neighborhood residents and businesses.

One thing is for certain, the proposed legislation will leave it up to the individual communities to decide if and where such open container districts are located, thereby giving a voice to all concerned parties. And thoughtful and inclusive planning that gathers input from all concerned parties will be necessary to ensure a successful outcome.  Below is an example of the benefits to businesses and the community which entertainment districts can create.