Real Estate Advisor Law Blog

Real Estate Advisor Law Blog

A New Cycle?

Posted in Leasing Issues
iStock_000013201412XSmall

It seems like lease issues come in cycles: seemingly out of nowhere, a particular issue that may have never been a concern on previous leases arises suddenly only to disappear once again. Is the rise to prominence of a certain issue indicative of something larger at play? Here are the issues I seem to be facing every day now.

Even small (in terms of leasable area) tenants receiving large allowances feel the need for an SNDA. These same tenants insist on every right in the lease carrying over to the lender. Lenders refuse to come out of pocket, even to allow the tenant to offset rent if it fails to receive the allowance (although the tenant must of course still pay full rent). Landlords want the tenant to pay the fee charged by the lender to execute the SNDA.

Landlords want the right to recapture space from a tenant who closes without reimbursing the tenant for any unamortized costs, even when the tenant has no operating covenant.

Tenants who pay percentage rent still want the right to go dark.

Landlords who breach a tenant’s exclusive on purpose want a fish or cut bait clause.

Landlords want the tenant to pay for the landlord’s loss of rent insurance, but do not want to allow the tenant to abate rent after a casualty.

Tenants want shell entities to be the tenant, want limited guarantees, and want to be released on assignment.

Landlords agree to a build-out period, but insist on having it start on the day of delivery even if the tenant has been unable to get a building permit.

Landlords want the right to charge an administrative fee on all CAM, even “non-controllable” items, in addition to a management fee.

Landlords say the covenant of quiet enjoyment is subject to mortgages and other encumbrances.

I will be glad when this cycle ends and we can go back to arguing over normal co-tenancy provisions. (Did I really just say that?)

Cincinnati Commercial Real Estate Summit

Posted in Retail Industry Issues, Uncategorized

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I just attended the Midwest Real Estate News Magazine Cincinnati Commercial Real Estate Summit. I heard a very interesting discussion about the Cincinnati real estate market, addressing retail, office, industrial, healthcare and investment properties.

Norm Khoury of Colliers International was the moderator.

John Thompson of Newmark Grubb Knight Frank discussed retail issues. John commented that the retail market may be softer than the other segments: there are less retailers due to consolidation and the increasing presence of big box retailers, and there is less demand for retail space in general due to internet shopping. Demand in the retail market is largely based on service providers because as John said you can’t get a haircut over the internet. John also pointed out the explosion in fast casual restaurant concepts and that food is driving demand at strip centers. However,  many of these retailers are finding it hard to find sites and are all fighting over the same locations because developers are not building new strip centers in Cincinnati.

While the internet may affect demand for retail sites, Jeff Bender of Cushman Wakefield pointed out the internet has helped the industrial segment. There is an increased need for warehouse and shipping space to service the internet buyer.

Steve Timmel of Colliers International discussed the challenges of office development where the landlord must be prepared to pay large allowances in relation to the rent being charged. He contrasted that with apartment developers who can expense turn over costs. That led to a discussion on how a municipality could partner with an office developer to increase office development. A new office will produce additional payroll tax. A municipality could fund or help fund the tenant allowances and receive a good return by way of increased taxes. A great idea, but apparently not many municipalities are willing or able to do that.

John Rickert of SVN RICORE Investment Management Inc. and Paul Heiserman of JLL also served on the panel. It was a very interesting presentation and a very impressive panel of speakers. Clearly we have outkicked our punt coverage: the quality of the real estate professionals in Cincinnati exceeds what you might expect given the size of our market.

New Wage Theft Ordinance In Cincinnati

Posted in Administrative Matters

Hands_background_CMYKCincinnati City Council recently enacted an anti-wage theft and payroll fraud ordinance designed to protect workers and insure that those doing business with the City pay their legal share of taxes and other financial obligations. The Ordinance is also designed to protect law-abiding employers from unfair competition from businesses that are willing to break the law to make a profit.

Cincinnati’s new Ordinance incorporates rules for reporting theft, a wage recovery policy and debarment penalties prohibiting companies found guilty of wage theft from doing future business with the City. As defined in the Ordinance, wage theft means not properly paying workers for all work performed – most commonly by paying less than minimum wage, not paying for all hours worked, or failing to pay overtime, in violation of existing local, state or federal law. Payroll fraud is described as concealing a business’ true tax or financial liability through tax evasion or fraud, misclassification of workers as independent contractors when they are actually employees, unreported or underreported payment of wages, or paying for a business transaction in cash without appropriate records.

Authored by Vice Mayor David Mann, the Ordinance (22-2016) is the first of its kind in Ohio. Similar ordinances have been enacted by cities across the country that determined wage and hour laws were not being adequately enforced by State and Federal governments.

 

Domestic Buyers and Foreign Seller’s

Posted in Tax Issues

As a result of the Protecting Americans from Tax Hikes Act (PATH) passed by Congress and signed into law in December, 2015 effective on the 16th of February, 2016 changes to the FIRPTA (Foreign Investment in Real Property Tax Act) go into effect. The withholding tax on foreign sellers will increase from 10% to 15% of the sale price of real estate. As with all real estate transactions “buyer beware.” If a buyer fails to determine if a seller is foreign or domestic the buyer could be held liable for any tax owed by a foreign seller. Check your purchase and sale agreement representations and warranties!


What Do Ted Jones and Doug Forbes Have In Common?

Posted in Development, Tax Credit Issues

-a39c602538327c8aFirst of all, Ted Jones is an economist who presents his economic forecast to the clients of NorthStar Title every January. Secondly, Doug Forbes is my brother who lives outside of Philadelphia. My brother had not been to Cleveland for 8 years when he came in for a short visit after Christmas. I took my brother on a quick tour of downtown Cleveland, Ohio City, Tremont and Gordon Square. I showed him all the new development that I have worked on (mostly historic conversion into apartments) but also the new Convention Center, the surrounding new hotels and, of course, the world’s largest outdoor chandelier in Playhouse Square. He was dumbfounded and could not stop talking about Cleveland’s comeback (which I had been telling him about for the last several years.) He started texting his wife and family back east. He sent them pictures. He emailed me when he got home and said WOW, maybe I should move back to Cleveland.

Last week, I went to listen to Ted Jones’ yearly presentation. He said that this was the first time in the 10 years that he had been coming to Cleveland that he could say that Cleveland is doing great economically. He cited our connection to the auto industry as one of the primary reasons. He also said that the retail boom is just starting and entry level homebuyers are returning to the market. But he also talked about our redevelopment and the strength of the housing market, in particular rental housing. He was high on Cleveland. Although Ted is from Texas and Doug is from Pennsylvania they are both now Cleveland fans. They finally see what I have seen for a long time. Cleveland is truly a renaissance city and I feel fortunate to be a part of its redevelopment.

The Cincinnati Children’s Theater

Posted in Construction Related Issues, Environmental Issues
Main Entrance

Main Entrance

We have been watching a wonderful adaptive reuse of an old machine shop in Cincinnati as it is transformed into the new home of the The Children’s Theater of Cincinnati. Peter Horton of Terrex Development & Construction is managing the construction and design of the new facility. Pete gave us a tour of the facility just prior to Thanksgiving when the improvements were still pretty raw. Today, three weeks later we walked through the facility and the progress on the improvements are astonishing.

Welcome Desk

Welcome Desk

First of all this facility is a state of the art theater studio and teaching facility for Cincinnati youth interested in the theater arts. The sound insulation, use of dry paint to paint ceilings black, main theater seating, electronics and many other impressive improvements have been installed to make the facility state of the art.

Even more impressive is that the facility will be LEED certified when completed. In that regard, Terrex designed a grey water recycling system which collects rain water off of the roof and holds it for use in the commodes.

Grey Water Recovery System

Grey Water Recovery System

Not only is the new facility going to train young thespians in theater arts, it is going to serve as an example that with a little effort we can all do our part to reduce our impact on the environment.

Administrative Offices

Administrative Offices

Costume Storage System

Costume Storage System

Welcome Desk as Improved

Welcome Desk as Improved

 

Administration Area

Administration Area

Main Stage Seating Risers

Main Stage Seating Risers

Well done Terrex and The Cincinnati Children’s Theater!

 

 

 

What’s Hot – What’s Not

Posted in Uncategorized

thU2E8KRAHAs 2015 comes to a close, it’s time to make resolutions and to consider what is trending.

My resolution is to eat better – more of a plant based diet with less processed foods. It’s either that or buy a new wardrobe. I just need someone to invent a plant based donut (that still tastes like a donut).

Here is my personal list of what’s trending for 2016 (disclaimer: it does not represent the views of Ulmer & Berne or any client).

HOT: Chef inspired fast casual restaurants  |  NOT: E-coli at fast food restaurants

HOT: Uber  |  NOT: Driving under the influence

HOT: Pop Ups  |  NOT: Bankruptcies

HOT: Pop Tarts  |  NOT: Hot Pockets

HOT: Kendra Scott  |  NOT: Rubber charity bracelets

HOT: Urban living  |  NOT: Urban grocery stores

HOT: Dollar Shave Club  | NOT: Facial hair

HOT: Netflix  | NOT: Red Box

HOT: Immigration reform  | NOT: Bigotry

HOT: Sea to table dining options (true catch of the day)  |  NOT: Easy Cheese (Cheese Whiz)

HOT: Orin Swift Location Wines  | NOT: White Zinfandel

HOT: Protein shakes  |  NOT: Buffets

HOT: Local retailers  |  NOT: Retail mergers

HOT: Boston Red Sox  |  NOT: Cincinnati Reds

Magic Concrete (aka Water Permeable Concrete)

Posted in Construction Related Issues, Water Quality Issues

permeable pavementHow do you make the rain water from those twice a year “100 year” storms disappear at a rate of 3-5 gallons of water per minute? Clean pollutants in the process and send the water directly into the municipal storm water system, but at a rate determined by your engineers? WATER PERMEABLE CONCRETE, that’s how! Watch the videos below to see how this material works:

Techno-Bloc Permeable Pavement

Tarmac Topmix Permeable Pavement

 

Cincinnati – the Center of Retail Development in America?

Posted in Retail Industry Issues

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I just attended a CREW presentation which was entitled “New Retail Trends and Addressing Consumer Demands.” However, the presentation was actually about three high profile retail projects all located in Cincinnati, Ohio, and, it included three high profile developers, at least one of whom (depending upon who you asked) is also extremely talented.

Mark Fallon of Jeffrey R. Anderson Real Estate, discussed the continuing expansion of Rookwood. Mark explained how Rookwood was the antithesis of all the other retail developments in and around Cincinnati and joked that other than Kenwood, Rookwood is the only one really worth going to. I never realized how thoughtful the merchandising was and how mixed the use is until I saw his graphic presentation of the project. I also came to the realization that it’s a good idea to be nice to Mark because he is involved somehow in every significant restaurant or retail deal in Cincinnati.

David Birdsall, head of PECO Real Estate Partners, discussed the new Kenwood Collection. Besides wearing a really swanky suit, David explained that the office space was fully leased and retail would be open by Christmas 2016-remarkable progress given the history of this project. David also explained they are designing a huge urban park as public space in the project. Including open public spaces seems to be a new trend in retail developments.

Justin Leyda of Steiner + Associates discussed the new Liberty Center which opened in October. Justin said he first started working on this project in 2008. He commented their whole program is to create an experience and sense of place for the consumer to provide an alternative to online shopping. So Liberty Center also has large public spaces, including a chapel that doubles as a yoga studio, a twirling garden walk way, and lots of parks. They also program public events like the upcoming Holiday tree lighting spectacular. Justin looks young enough to be in high school – think Doogie Houser – but his skills belie his youthful appearance.

One interesting part of the presentation was their discussion of the significant challenges they have faced. David Birdsall talked about how they signed an LOI with Saks, but then Saks got sold and decided not to go forward. The Landlord had to redesign the whole project and find new tenants. Mark Fallon had a similar story where they designed the building for a cinema and then decided it did not make sense to go forward with that use, and had to re-fit the building. (Mark said his office is now in Cinema 2.) Justin Leyda talked about the cynicism he faced in building a multi-million square feet mixed use center in what was essentially a corn field.

The common thread for these three talented men is the secret to success for us all. Each of these guys is tremendously creative and hard-working and refuses to take no for an answer. It is never “if.” It is always “how.”

In terms of adding to the quality of life in Cincinnati, all of these projects are wildly successful. There are new restaurants, stores, offices, apartments and public spaces – all nationally recognized and all in Cincinnati. And I haven’t even started talking about downtown Cincinnati with The Banks and Over the Rhine.

Bringing the Downtown Shopping Experience to the Exurbs

Posted in Retail Industry Issues
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Photo Courtesy of Liberty Center

I recently attended our client’s, Steiner + Associates, grand-opening ceremony for Liberty Center, a $350 million mixed-use development featuring, shopping, dining, luxury residential apartments, offices, a state-of-the-art movie theater and a new to market AC Hotel by Marriott located in the middle of the growing Cincinnati-Dayton metroplex along Interstate 75.

As I toured Liberty Center, the features that I thought that made this development stand out from competing suburban shopping centers were the attention and focus to making it a community-centered destination. It’s a place where people would want to gather and linger rather than just making a transaction. And being more than just a place where shopping transactions are made is important with the ever-growing competition from online shopping forums as well as changing consumer tastes. The inclusion of squares, parks, rooftop gardens, community center, a living room area in the Foundry building, public art and a multi-denominational chapel all contribute to creating an urban town center rather than just a suburban mall. In fact, the public sentiment is that Liberty Center was a “downtown that fell from the sky” in Liberty Township. Though these features do not directly contribute to the profitability or bottom-line of Liberty Center’s merchants and businesses, there is an indirect benefit. People will want to visit, and stay, for a variety of reasons and they’ll be able to do so by accomplishing multiple tasks or events with a trip to Liberty Center. This makes a visit more convenient, enjoyable and compelling. And thus, a community that will support the center’s businesses will be formed.

Though the idea of designing shopping centers as town squares is not a new concept, it is becoming a necessity to make centers, particularly those in suburban locations, more relevant to today’s shopper. The convenience of online shopping and the preference of the millennial and empty nester demographics to have walkable and inviting places to live, work and play has been driving demand for design concepts that respond to these needs for convenience and a sense of place.

I think there are a lot of good lessons to be learned from utilizing these design concepts in mixed-use developments to create a competitive advantage and other developers will certainly be taking cues from Liberty Center as future centers are being designed and planned.

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