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
With nearly 20 years of experience in real estate law, Jodi assists clients with matters involving all types of commercial properties with a particular focus on addressing the legal needs of clients in the retail, restaurant, and hospitality industries. She represents a wide variety of clients in commercial real estate transactions, including buyers, sellers, landlords, tenants, borrowers, and lenders in the acquisition, sale, development, leasing, and financing of commercial properties. Taking the time to understand the intricacies of her clients’ businesses, Jodi has particular skill representing restaurant clients in complex real estate matters. She represents a newly developed restaurant concept that is expanding into several markets.
Jodi has experience representing clients with a diverse range of commercial properties, including shopping centers, apartment complexes, and skilled nursing and assisted living facilities. She has extensive experience with 1031 exchanges, has negotiated transactions involving distressed and contaminated properties, and has navigated deals with creditor rights issues. Recognized for her talent, Jodi has been named to The Best Lawyers in America© for Real Estate Law every year since 2012.
Interest Rate Hike?
We have been hearing a lot for a long time that interest rates are going to be on the rise. In fact, in early summer, we did see a jump in the prime rate. However, the Federal Reserve has not moved yet to increase the rate that it charges to banks. It is anticipated that…
Southern Title Insurance Corp. Ceases Issuing New Policies
Foreclosed from Foreclosure?
Purchasing foreclosed real estate has never been easy or risk-free. In Ohio, all purchases are “AS-IS” and purchasers generally do not have an opportunity to inspect the property. A 10% cash deposit is due upon bidding and payment in full is due within thirty days with the threat of contempt of court if the purchase price is not paid. And the risks to purchasers are increasing.
Recently several banks have elected to stop residential foreclosures due to questions about their internal procedures. The attorneys general of all 50 states are now conducting a joint investigation into possible false or unverified information contained in affidavits and improper notarization of affidavits. Remedies for homeowners whose homes have been wrongfully foreclosed are determined by state law, but may include an unwinding of the foreclosure and returning legal title to the borrower. But what happens when that home has been purchased by a third party at foreclosure sale? Or flipped to another owner?
ELIMINATING OFF-BALANCE-SHEET ACCOUNTING OF LEASES
Remember Enron and off-balance-sheet accounting scandals? The efforts to clean up these accounting practices are still in the works and are about to hit the world of commercial real estate—arguably at the worst possible time. The Financial Accounting Standards Board (FASB) (which is endowed with the power to decide U.S. generally accepted accounting principles) and its international counterpart, the International Accounting Standards Board (IASB) are hoping to enact a new lease accounting standard by 2013. The Securities and Exchange Commission in a 2005 report to Congress estimated that the current lease accounting standards which went into effect in 1976 allow tenants to keep about $1.25 trillion in future liabilities off-balance-sheet.
Currently, a lease may be shown on a tenant’s balance sheet as either a capital lease which is treated on the balance sheet much like a finance transaction or as an operating lease which is mostly off-balance sheet. The FASB and IASB believe that investors are not getting a full picture of a tenant’s obligations when the lease is treated as an operating lease because the lease payments are recognized as an expense when they are incurred or paid rather than all of the rental payments for the term appearing as a liability on the balance sheet.
Continue Reading ELIMINATING OFF-BALANCE-SHEET ACCOUNTING OF LEASES
Because Underwriters Never Really Liked You Anyway: Good-bye ALTA Endorsement Form 21-06
Continue Reading Because Underwriters Never Really Liked You Anyway: Good-bye ALTA Endorsement Form 21-06
REPORTS OF MY DEATH HAVE BEEN GROSSLY OVERSTATED
In 2001 when Congress repealed the estate tax for the far off year of 2010, with the estate tax returning in full force in 2011, everyone assumed that Congress would act to revise the 2001 law before January 1, 2010. However, to everyone’s surprise, Congress did not act. The new year has come and gone and…
In 2005 the United States Supreme Court in Kelo v. City of New London upheld the actions of the City of New London, Connecticut (the “City”) in forming a non-profit corporation to redevelop the Fort Trumbull area of the City. In order to capitalize on Pfizer, Inc.’s (“Pfizer”) private development of an adjacent research facility…
Power(less?) of Attorney
One of my business law professors often started the class with an anecdote that had nothing to do with anything on our syllabus. One morning he entered the class and told of the frustrations he had in trying to execute a deed on behalf of his wife who was out of the country and for whom he held a perfectly drafted and executed power of attorney. Alas, the title company refused to accept the deed.
I have had issues of power of attorney pop up in three different contexts of my practice recently. First, two underwriters refused to insure title to a property because the vesting deed was a transfer on death deed (ugh, see my prior comments about the dreaded transfer on death deed) executed by a power of attorney. Although there is no statutory prohibition with respect to the validity of such a transfer, initially, neither underwriter would insure title. One underwriter was swayed by the fact that the deceased’s will provided the same disposition for the property as the deed (although with the hassle of probate), the other underwriter was unmoved.
Second, it is common for commercial leases to provide that if a tenant refuses to execute a tenant estoppel or a subordination agreement, then the landlord has a power of attorney to execute the documents on behalf of the tenant. When I represent tenants, I regularly strike this language. However, practically speaking, lenders will not accept documents executed by a power of attorney. With respect to estoppel certificates, the lenders already have the information from the lender—they want to hear directly from the tenant. With respect to the subordination, using a power of attorney leaves open too many openings for the tenant to push through in the event the subordination becomes an issue in the future. For example, a judge may find that the power of attorney should have been recorded when given or may refuse to enforce certain provisions for equitable reasons which the judge may have been more likely to enforce had the tenant been the party executing the subordination directly.
The Dreaded Transfer on Death Deed
Ohio’s Transfer on Death Statute became effective at the beginning of 2002. Prior to the law being passed, there was much buzz in the real estate and trusts and estates legal community about why Ohio did not have a vehicle permitting owners of real estate to transfer real property on death to a named beneficiary, thereby…