If you have a minute, check out my profile and client feedback to better understand who I am and how I can help you.
8.8 Client Rating "Excellent"
Wednesday, March 25, 2015
AVVO Recognition
I continue to strive to provide legal support to San Diego residents and real estate professionals. As a result of my ongoing activity on AVVO and positive feedback from clients and other attorneys, I have obtained "excellent" and "clients choice" recognition on that site.
If you have a minute, check out my profile and client feedback to better understand who I am and how I can help you.
8.8 Client Rating "Excellent"
If you have a minute, check out my profile and client feedback to better understand who I am and how I can help you.
8.8 Client Rating "Excellent"
Thursday, March 5, 2015
2015 San Diego Business Journal "Best of The Bar"
I am honored and grateful to be recognized by peers and clients as one of San Diego's "Best of the Bar" in the list compiled annually by the San Diego Daily Transcript. This is my second year in a row receiving this honor, and I hope that I continue to uphold this tradition for many years to come.
Thursday, October 9, 2014
If A Neighboring Anchor Tenant Is Important To Your Business, Be Sure It Ends Up In The Lease
Many retail leases involve small tenants that are dependent on the foot traffic generated by a large "anchor tenant" in a retail shopping center. (e.g. Vons, Target, Macy's, Home Depot, Best Buy, etc...)On multiple occasions, I have been hired by tenants or their former brokers as they sue each other and the landlord, because a tenant's business is failing after an anchor tenant has moved out. In the most troubling instances, the landlord can't seem to find a replacement anchor tenant for months or years, and the small tenants discover for the first time that there is no way to get out of the remainder of his/her 10-15 year lease commitment.
For those tenants that are dependent on foot traffic generated by a larger tenant in the same project, it is crucial that his/her lease includes language in the representations and warranties, in the condemnation clauses, or in a custom drafted lease section that confirms the tenant's right to terminate the lease if the key anchor tenant ceases operations in the project. I have been surprised to learn that, with appropriate restrictions, many landlords will not oppose these lease revisions because they believe that the project will have failed by the time the tenant is able to exercise the right to terminate.
Similarly, if an anchor tenant is not open at the time of leasing, but its opening is a material consideration for entering the lease, DO NOT rely on the oral representations of the landlord's broker or the landlord himself/herself regarding the opening date or that status of lease negotiations. Negotiations with tenants can fall apart, businesses can fail unexpectedly, and the tenant that is reliant on foot traffic to stay in business can quickly find himself/herself financially tethered to a location that never had a chance of success.
Tuesday, July 15, 2014
It is cheaper to store documents than it is to wish you had ...
As many practitioners know, the California BRE requires that brokers retain client files for no less than three (3) years (Business and Professions Code Section 10148(a)), but that regulation should not be viewed as a license to shred on every three (3) year anniversary (especially for transactions subject to dispute, or involving the broker as a party).
FACTS
Broker ("B") engages in a number of transactions representing Principal ("P") in the purchase of small commercial buildings. P also engages in a number of hard money loans to 3rd parties, with B preparing the loan agreements and notarizing those agreements. Toward the end of these transactions B loans P some money (in cash) during a heavy tax year, which is documented with a "note" signed by P. Later the same year P repays B with a check, but does not designate on the check or the note that the check was intended as a repayment of the note. B did not retain banking records reflecting the original cash loan, or record on the check or note that the check was a repayment of the note. At roughly the same time, one of the loans made by P to a 3rd party goes bad. P and B stop talking to one another as a result of the bad financial outcome for P.
Almost six (6) years later, P appears at B's office demanding that B repay the bad debt of the 3rd party borrower, and B refuses. P thereafter files a lawsuit, with a forged "note," claiming that the check was actually money deposited in "trust" for another real estate transaction that B had allegedly converted for himself. Unfortunately, B was forced to defend the matter through trial. (For the attorney's reading this, the statute of limitations was wrongfully determined to have been tolled until the date of the first demand for return of the alleged trust deposit.)
HOW COULD THIS BE AVOIDED IN THE FUTURE
While you can't do anything to prevent people from committing perjury or filing forged documents with the Court, you can hold onto the documents that reflect the inconsistency of the other party's story. The only real defense to a perjurer is to document your transactions thoroughly in the same way every time, and hold onto those documents until you are certain that the claim is dead. (Hint: When you know someone is angry with you and may be looking for a way to sue, the claim is never truly dead.)
Documenting the transaction means having some document that identifies what your agreement is. If you undertake the representation of a buyer, using a buyer-broker agreement that identifies what you are going to do and for how long.
Documenting the transaction means, when you accept a trust deposit for a particular task, you issue a receipt that identifies what the deposit is for, and you note the deposit and reconcile the trust account regularly.
Documenting the transaction means, when you have a conversation where someone makes an unreasonable demand on you, or misrepresents facts as part of a demand, you or your attorney should document that exchange, and consider legal action to resolve the dispute.
Finally, documenting the transaction means, when two documents are related (e.g. note and payment on the note) there should be some indication on one or both of the documents that reflects their relationship. It doesnt take much to fill in the "memo" portion of a check, and that little memo can make all the difference in the world!
FACTS
Broker ("B") engages in a number of transactions representing Principal ("P") in the purchase of small commercial buildings. P also engages in a number of hard money loans to 3rd parties, with B preparing the loan agreements and notarizing those agreements. Toward the end of these transactions B loans P some money (in cash) during a heavy tax year, which is documented with a "note" signed by P. Later the same year P repays B with a check, but does not designate on the check or the note that the check was intended as a repayment of the note. B did not retain banking records reflecting the original cash loan, or record on the check or note that the check was a repayment of the note. At roughly the same time, one of the loans made by P to a 3rd party goes bad. P and B stop talking to one another as a result of the bad financial outcome for P.
Almost six (6) years later, P appears at B's office demanding that B repay the bad debt of the 3rd party borrower, and B refuses. P thereafter files a lawsuit, with a forged "note," claiming that the check was actually money deposited in "trust" for another real estate transaction that B had allegedly converted for himself. Unfortunately, B was forced to defend the matter through trial. (For the attorney's reading this, the statute of limitations was wrongfully determined to have been tolled until the date of the first demand for return of the alleged trust deposit.)
HOW COULD THIS BE AVOIDED IN THE FUTURE
While you can't do anything to prevent people from committing perjury or filing forged documents with the Court, you can hold onto the documents that reflect the inconsistency of the other party's story. The only real defense to a perjurer is to document your transactions thoroughly in the same way every time, and hold onto those documents until you are certain that the claim is dead. (Hint: When you know someone is angry with you and may be looking for a way to sue, the claim is never truly dead.)
Documenting the transaction means having some document that identifies what your agreement is. If you undertake the representation of a buyer, using a buyer-broker agreement that identifies what you are going to do and for how long.
Documenting the transaction means, when you accept a trust deposit for a particular task, you issue a receipt that identifies what the deposit is for, and you note the deposit and reconcile the trust account regularly.
Documenting the transaction means, when you have a conversation where someone makes an unreasonable demand on you, or misrepresents facts as part of a demand, you or your attorney should document that exchange, and consider legal action to resolve the dispute.
Finally, documenting the transaction means, when two documents are related (e.g. note and payment on the note) there should be some indication on one or both of the documents that reflects their relationship. It doesnt take much to fill in the "memo" portion of a check, and that little memo can make all the difference in the world!
Monday, May 19, 2014
Remember you are the gatekeeper to your client.
FACTS:
Agent ("A") had a long standing relationship with out of state principal ("P") that was constantly looking for the perfect San Diego vacation home. A never asked P to execute a representation agreement depite the dedication of multiple days of effort to find a property for P. After years, and multiple visits to San Diego, P finally fell in love with home in costal San Diego County for a purchase price in excess of $1M.
The property was listed by Flipper ("F") who exercised control over the listing broker, but F was not broker of record because F had hired a "straw man" broker to operate the brokerage that F owned. F was renowned for aggressive negotiations, and drove an exceptionally hard bargain.
After exchanging multiple offers and counter offers. During the process of exchanging documents, A provided the contact information for P to the broker that was "representing" F.
Unbenownst to A, F contacted P and indciated that F would only sell the property to P if P would terminate A as his agent, and contract directly with F (excluding F's "straw man" broker) for the property at a slightly reduced price. This was P would get a discount, and F could obtain a greater net sales price. As instructed, P allowed the pending counter-offer to expire, and then without A's knowledge signed an agreement with F to purchase the very same property. F and P closed escrow on the property a few weeks later.
Approximately six months after the sale had closed, a guilt ridden P called A and confessed to A that he had purchased the property without her despite A's years of effort to find P the "perfect" house.
HOW COULD THIS BE AVOIDED IN THE FUTURE:
Getting A the commission that was owed required binding arbitration and thousands of dollars in attorney's fees. I believe others could avoid similar disputes by applying the following practical lessons to their daily practice:
(1) When representing buyer(s), especially buyers that like to use your gas and time to look at properties for days on end, always get an exclusive representation agreement confirming your right to a commission for your efforts. While A had the good fortune to have submitted an offer with A's name on it before P decided to defect in this scenario, P could have just as easily decided to go it alone before any offer was made.
(2) When representing buyers or sellers, avoid provding the other side with means to contact your client directly, unless absolutely necessary. This means no "cc'ing" emails, providing direct telephone numbers, or direct contact addresses. While the NAR code of ethics prohibits working around the other broker/agent, not all brokers and agents follow the NAR code.
(3) For listings that fall out of negotiations or escrow without an excuse that seems to make sense, you should calendar a reminder for three (3) months in the future. Without P's return to his conscience, A would have been unaware that tens of thousands of dollars in commission were owed. It only takes five minutes to check public records to confirm that your principal and the other party havent conspired to cheat you out of a commission.
Agent ("A") had a long standing relationship with out of state principal ("P") that was constantly looking for the perfect San Diego vacation home. A never asked P to execute a representation agreement depite the dedication of multiple days of effort to find a property for P. After years, and multiple visits to San Diego, P finally fell in love with home in costal San Diego County for a purchase price in excess of $1M.
The property was listed by Flipper ("F") who exercised control over the listing broker, but F was not broker of record because F had hired a "straw man" broker to operate the brokerage that F owned. F was renowned for aggressive negotiations, and drove an exceptionally hard bargain.
After exchanging multiple offers and counter offers. During the process of exchanging documents, A provided the contact information for P to the broker that was "representing" F.
Unbenownst to A, F contacted P and indciated that F would only sell the property to P if P would terminate A as his agent, and contract directly with F (excluding F's "straw man" broker) for the property at a slightly reduced price. This was P would get a discount, and F could obtain a greater net sales price. As instructed, P allowed the pending counter-offer to expire, and then without A's knowledge signed an agreement with F to purchase the very same property. F and P closed escrow on the property a few weeks later.
Approximately six months after the sale had closed, a guilt ridden P called A and confessed to A that he had purchased the property without her despite A's years of effort to find P the "perfect" house.
HOW COULD THIS BE AVOIDED IN THE FUTURE:
Getting A the commission that was owed required binding arbitration and thousands of dollars in attorney's fees. I believe others could avoid similar disputes by applying the following practical lessons to their daily practice:
(1) When representing buyer(s), especially buyers that like to use your gas and time to look at properties for days on end, always get an exclusive representation agreement confirming your right to a commission for your efforts. While A had the good fortune to have submitted an offer with A's name on it before P decided to defect in this scenario, P could have just as easily decided to go it alone before any offer was made.
(2) When representing buyers or sellers, avoid provding the other side with means to contact your client directly, unless absolutely necessary. This means no "cc'ing" emails, providing direct telephone numbers, or direct contact addresses. While the NAR code of ethics prohibits working around the other broker/agent, not all brokers and agents follow the NAR code.
(3) For listings that fall out of negotiations or escrow without an excuse that seems to make sense, you should calendar a reminder for three (3) months in the future. Without P's return to his conscience, A would have been unaware that tens of thousands of dollars in commission were owed. It only takes five minutes to check public records to confirm that your principal and the other party havent conspired to cheat you out of a commission.
Introduction and purpose
As an attorney and real estate broker practicing real estate and business law for almost a decade, I have seen some of the craziest scenarios you can imagine. Many times it is clear that one or two missteps by a party is all that it takes to send a routine transaction spinning out of control towards litigation.
I have seen too many of these avoidable disputes. In an effort to help as many transactions as possible from the chaos of litigation, I have decided to help others that don't have the privilege/curse of my case files or the years of real estate experience needed to avoid these problems by instinct. I hope that this blog will build a collection of war stories from my own experiences and the experiences of others, to help highlight the simple practices that others can adopt to avoid falling into the same traps.
I have seen too many of these avoidable disputes. In an effort to help as many transactions as possible from the chaos of litigation, I have decided to help others that don't have the privilege/curse of my case files or the years of real estate experience needed to avoid these problems by instinct. I hope that this blog will build a collection of war stories from my own experiences and the experiences of others, to help highlight the simple practices that others can adopt to avoid falling into the same traps.
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