On April 1, 2020, Ohio Governor Michael DeWine signed Executive Order 2020-08D, which requested commercial landlords to suspend rent and evictions for 90 days and requested commercial lenders to forebear mortgage payments for 90 days. My first impression of the order was that it had no teeth. For various reasons that were understandable, the Governor
COVID-19 has impacted the world unlike any event in recent history. While most industries have been affected, commercial real estate may suffer the most. Recently, I read an article from ZDNet that made me pause. The article cited a Gartner survey that concluded 74% of CFOs believe that a number of employees will be permanently…
I attended the recent ICSC Regional Law Conference in Columbus, Ohio. It was a great conference where I reconnected with many great colleagues – including my son Kendall who is only in his second year practicing law, but recently took advantage of his Dad in a lease negotiation where he represented an escape room tenant and his Dad represented the landlord.
Richard Tranter’s presentation on the need for retail to be experiential was great. But Kendall explained it best when he said “a successful retail experience is one where people want to post an Instagram picture about the experience.” I am definitely stealing that.
The best presentation was actually about cannabis, which is a fast-growing retail industry with very interesting legal issues. As you can imagine, attendance for this presentation was high. (ha!)…
Continue Reading Fix Your Lease Even if You Can’t Fix the Weather
University of Cincinnati Law Professor Sean Mangan does not hate many things, but ‘and/or’ has to be first on the list – along with whomever might be playing his Irish that weekend. I had the pleasure of taking multiple drafting classes with him several years ago, but I honestly never quite understood the depth of his anger towards the use of ‘and/or’ (along with “thereof”, “henceforth”, “hereto”, and the like). However, as it turns out, he is in very good company, as many judges and legal drafters seem to have some unresolved anger issues with this phrase as well.
The generally agreed upon meaning of “X and/or Y” is “X or Y or both”. That is a fine definition, but the problem is that the lack of clarity on the surface of the expression can allow opposing counsel to deliberately misinterpret whatever provision is in question in their client’s favor. If “X or Y or both” is what you mean, then just write what you mean! Take a look at how judges and style guides view the use of ‘and/or’:…
Continue Reading A Plea And/Or Request: Stop Using And/Or
I just attended the BDO Restaurant CFO Roundtable where I presented the Top 10 Most Important Legal Provisions of a Restaurant Lease. Arranged by Dustin Minton and Floyd Roades of BDO, the Roundtable brings together restaurant industry executives to learn about industry trends. BDO is the industry leader when it comes to accounting services for restaurants. I was very impressed with every BDO person I met and I loved their new office. Wide open spaces designed to encourage collaboration. The best space was the employee dining room which had a ping pong table in it and an attached balcony overlooking Great American Ballpark.
I won’t recreate the whole presentation here, but I will say that the top most important lease provision (according to me) is the construction exhibit/clause. Between chargebacks, bonding requirements, security deposits, impact fees, requirements to work before permits are received, equipment requirements and design requirements, a tenant’s construction budget and opening schedule could be significantly affected. And these things are never covered in the LOI and typically are not even presented until the end of the lease process.…
Continue Reading Life is Like a Restaurant
Last week we attended the ICSC U.S. Shopping Center Law Conference in San Antonio, Texas. For 4 days we attended educational sessions (we actually led the discussion in 2 of those), visited with clients and colleagues, renewed friendships and made new ones. There were about 1,350 attendees at this conference, the programming was terrific, and opportunities were abundant.
Clients and lawyers with whom we may only have an electronic connection for most of the year were suddenly and delightfully in the same physical place as us for 4 or 5 days. It was during this face-to-face time that I realized how important it is to actually know our clients and the folks who sit across the table from me the rest of the year.…
Continue Reading Relationships Matter
“Street Food” has generally referred to prepared food items ready for immediate consumption sold on the street or in a public space from a food cart, food truck or similar moveable station. The connotation was cheaper fast food.
Today, “street food” is a unique, trendy selling point. There is Piada Italian Street Food that brands…
I just returned from the National Restaurant Association Financial Officers and Tax Executives Conference in Las Vegas. I participated on a Real Estate Leasing Trends panel with Adam Schwegman, head of the eat/drink department of General Growth Properties and George Galloway of Next Realty Mid-Atlantic, with Ryan Cupersmith of Ernst & Young as our moderator. While there, I was able to soak in some knowledge myself. Here are some of the highlights of what I learned:
- Restaurants may be the new anchor in retail developments. A center has to provide an “experience” to motivate consumers to shop at the center as opposed to sitting home and buying over the internet. Restaurants have become a great way to create an experience and draw customers in.
- Restaurants are immune to internet competition. Last time I checked, you can’t buy a prepared meal over the internet that comes with a server and clean-up crew, so restaurants appear to be safe from internet competition, at least for now.
I have previously commented about the similarity in service between a restaurant and law firm (see prior blog). One area where restaurants differ from other businesses is the issues presented in a retail lease.
A restaurant lease involves unique issues which must/should be dealt with, some more monetarily significant than others. But don’t underestimate the annoyance factor. If any of these issues are not dealt with appropriately, you can bet someone will be more than a little annoyed.
- Impact Fees – Because restaurants are typically big water consumers, new build locations may charge a significant tap-in fee. In some cases, there may be various impact fees. Depending on leverage, a restaurant may be able to get the landlord to pay this as part of its development costs. But even if the landlord will not pay the fee, the restaurant needs to know the exact amount of the fee so that it can correctly prepare its budget.
- Trash Removal – There are many different ways a landlord can charge for trash removal. Does the restaurant have its own dedicated dumpster? Does the landlord mark up the bill? Is there a choice on who to use as the hauler? I have heard of landlords going to a weight-based system where a tenant gets billed for actual disposal, but have not actually seen one in place. In any event, these details need to be determined before the lease is signed.
I am a commercial leasing attorney at a large firm. I have developed a decent stable of loyal clients, but not because I am the smartest attorney in the world. I like to think I’m smart, but I would be less than honest if I said that my success is due to being the smartest guy in the room. No, I believe my success is attributable to my client service. I know I have done my job when a client asks if they are my only client. So what is good service? It is not merely returning phone calls or emails. It is going above and beyond expectations. And who is the client? It should not just be the ultimate consumer, but everyone you work with and for. So it is not just the CEO of the company for whom you are providing services, it is the secretary or administrative assistant at the company, it is every other employee at that company with whom you may interact, and it is your superiors at your own company.
I waited tables to help pay for college. As a waiter, my income was 100% dependent on providing good service. And that meant not just bringing the meal, but like an attorney going above and beyond expectations. In many ways, everything I really need to know about client service I learned from being a waiter.…
Continue Reading All I Really Need to Know About Client Service I Learned in a Restaurant