CLE Update: Titles to Real Estate in Ohio
The Ohio State Bar Association (OSBA) is sponsoring a seminar titled "Titles to Real Estate in Ohio" on June 27, 2012. The seminar will be held live and via Webcast in Columbus, Ohio with live simulcast seminars in Akron, Cleveland, Fairfield and Perrysburg. The seminar will provide for 6.0 CLE hours and 6.0 NLT hours.
Click here for more information.
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CLE Update
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Survey and Title Issues
County Delays on Oil & Gas Examinations
(Published/Edited with Permission from Chicago Title Cleveland)
The increased interest and demand for leasehold information regarding oil and gas rights has put a good number of counties under a great deal of stress because their existing systems are unaccustomed to handling so much activity. Oil and gas companies have been sending in additional examiners to provide more detailed drilling and pipeline right of way exams. As more and more oil and gas company examiners flood these counties, anyone trying to obtain leasehold or other title related information is experiencing delays and subsequent increased exam costs. This increased cost is due to nature of the leasehold information being examined. This exam is a separate chain of title and is charged at an hourly rate. In addition to higher costs, the increase in activity has made determining the ETA of an exam challenging. Many counties have put time limits on the examiners, giving each examiner 15 to 45 minutes of exam time. Having prior policies or commitments can greatly reduce the search time.
Here is a list of the Ohio counties experiencing delays and exam time limits:
Athens
Belmont
Carroll
Columbiana
Coshocton
Guernsey
Harrison
Holmes
Jefferson
Mahoning
Noble
Portage
Stark
Trumbull
Tuscarawas
Chicago Title has been serving Ohio for over 50 years. Through their nationwide network, they provide title insurance, underwriting, escrow and closing services to every spectrum of the real estate industry. For more information, visit them at http://www.cticnow.com/.
Labels:
Energy
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Gas and Oil
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Survey and Title Issues
CLE Update: The Return of CMBS
ALI-ABA and ACREL are sponsoring a live audio webcast/telephone seminar titled "The Return of CMBS: Revived, Reviled, Rescued or Redeemed?" on June 7, 2012 from 1:30 pm to 2:30 pm ET.
Click here for more information.
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CLE Update
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Financing
Commercial Real Estate Financing: Easier, but “Stars, Moon and Sun not yet Aligned”
A viewpoint from Eric Fixler, Managing Director of Johnson Capital’s Boca Raton Office
(re-printed with permission from Mr. Fixler)
We are quickly approaching the end of the second quarter in 2012, and financing seems to be getting easier. Lenders that took a hiatus are getting back in the market and sellers, borrowers and lenders are becoming more realistic with expectations in regard to sale price, loan products and financing terms. But are the stars, the moon, and sun really aligning?
Struggling financial institutions and global economic uncertainty have continued to restrain lender appetite and further complicate a much-needed recovery in the commercial real estate market. In addition, maturing loans in 2012 that were made at the peak of the market are presenting refinance challenges for borrowers and servicers. Many of the properties are either over-leveraged or under water based on current lending parameters and will need to be refinanced, deleveraged or sold at a discount.
Now that I have addressed the obligatory doomsayers – it is not all bad news.
It looks like 2012 will turn out to be a strong year for financing as indicators are trending upward and meeting lender and borrowers expectations. Almost a year ago things were looking up for the first half of 2011. Then the summer's disruption caused by the domestic debt crisis and the looming European default, among other things, put a damper on any brewing exuberance. According to borrowers and bankers, the tides have shifted and the ball is rolling once again in the real estate industry as a liquidity trend is underway.
A Cushman report predicts volumes for the year to change very little overall from 2011, which saw transactions for all property types between $805 billion and $815 billion. They forecast a potential 20 percent increase in loan volume between the first and second halves of this year. The report also anticipates activity picking up due to both stronger demand and increased investment supply resulting from bank loan sales and recapitalizations.
With borrowing rates at historic lows, we are expecting larger allocations to commercial real estate this year from life companies, commercial banks and CMBS lenders. The institutions view commercial real estate mortgages as attractive investment opportunities versus alternative bonds or other fixed-rate financial instruments.
Commercial mortgage-backed securities (CMBS) aggregate issuance hit $32.7 billion this past year, 7 percent short of analysts’ expectations as a result of uncertainty in global markets, according to Standard & Poor’s. The volume, however, is an impressive comeback after only $12 billion was issued in 2009 and 2010 combined. The commercial mortgage market clearly needs this sector to recover because it remains the fastest in terms of timing and offers loan-to-value ratios (LTVs) in the 70 percent to 75 percent range.
At Johnson Capital, we have to deal cautiously with the signals in today’s marketplace. We are observing declining cap rates and increasing leverage but need to take a closer look at these indicators. There is not one “golden rule” to follow in today’s financing market. As part of our understanding of any transaction and its ability to be financed, we tend to focus on a few key indicators, of which value and sponsorship are crucial to the process.
Valuation is largely based on in-place cash flows with a cautious look toward pro-forma increases in income and reduced expenses, resulting in an improved net operating income. Financial trend analysis of an asset becomes a focal point of the underwriting process and often directs the expectation of the operations going forward. If the asset has a “story” and the market positioning can corroborate the turnaround strategy, it greatly helps the lenders in pushing value and increasing leverage. The sponsor’s financial strength and track record in operating real estate help complete the overall comfort level with the lender and reduce the operational risk once a loan is in place for the asset. The borrower’s local presence, operational experience and financial wherewithal are key components to successfully closing any transaction these days.
Lending still remains controlled as banks slowly shake off the over-cautious approach adopted in the aftermath of the financial crisis. With these points in mind, it is clear that the commercial mortgage market still has a ways to go to reach stability, let alone a full-fledged recovery. That said, at Johnson Capital we understand the factors that control this industry and are here to provide our clients with the best advice and financing options to help them achieve success in their real estate transactions. Our mortgage bankers recognize the opportunity to meet the growing demand for financing loans either through local banks, life insurance companies, CMBS originators or bridge lenders.
Founded in 1987, Johnson Capital is one of the country’s top real estate capital advisory firms with eighteen locations nationwide. Their services include debt placement and acquisition financing for permanent, construction and repositioning in addition to joint venture equity placement for individual assets, portfolios, entities and discretionary funds. Johnson Capital transactions have ranged in total funding from $1 million to over $300 million and have financed all property types, including: multifamily, office, retail, industrial, hotels, mixed use, manufactured housing, credit-tenant leases, single-family housing and land developments. For more information about Johnson Capital, log on to their website at: http://www.johnsoncapital.com/. Eric Fixler is the Managing Director of the Johnson Capital office in Boca Raton Florida. He can be reached at (561) 337-1449 or ericfixler@johnsoncapital.com.
(re-printed with permission from Mr. Fixler)
We are quickly approaching the end of the second quarter in 2012, and financing seems to be getting easier. Lenders that took a hiatus are getting back in the market and sellers, borrowers and lenders are becoming more realistic with expectations in regard to sale price, loan products and financing terms. But are the stars, the moon, and sun really aligning?
Struggling financial institutions and global economic uncertainty have continued to restrain lender appetite and further complicate a much-needed recovery in the commercial real estate market. In addition, maturing loans in 2012 that were made at the peak of the market are presenting refinance challenges for borrowers and servicers. Many of the properties are either over-leveraged or under water based on current lending parameters and will need to be refinanced, deleveraged or sold at a discount.
Now that I have addressed the obligatory doomsayers – it is not all bad news.
It looks like 2012 will turn out to be a strong year for financing as indicators are trending upward and meeting lender and borrowers expectations. Almost a year ago things were looking up for the first half of 2011. Then the summer's disruption caused by the domestic debt crisis and the looming European default, among other things, put a damper on any brewing exuberance. According to borrowers and bankers, the tides have shifted and the ball is rolling once again in the real estate industry as a liquidity trend is underway.
A Cushman report predicts volumes for the year to change very little overall from 2011, which saw transactions for all property types between $805 billion and $815 billion. They forecast a potential 20 percent increase in loan volume between the first and second halves of this year. The report also anticipates activity picking up due to both stronger demand and increased investment supply resulting from bank loan sales and recapitalizations.
With borrowing rates at historic lows, we are expecting larger allocations to commercial real estate this year from life companies, commercial banks and CMBS lenders. The institutions view commercial real estate mortgages as attractive investment opportunities versus alternative bonds or other fixed-rate financial instruments.
Commercial mortgage-backed securities (CMBS) aggregate issuance hit $32.7 billion this past year, 7 percent short of analysts’ expectations as a result of uncertainty in global markets, according to Standard & Poor’s. The volume, however, is an impressive comeback after only $12 billion was issued in 2009 and 2010 combined. The commercial mortgage market clearly needs this sector to recover because it remains the fastest in terms of timing and offers loan-to-value ratios (LTVs) in the 70 percent to 75 percent range.
At Johnson Capital, we have to deal cautiously with the signals in today’s marketplace. We are observing declining cap rates and increasing leverage but need to take a closer look at these indicators. There is not one “golden rule” to follow in today’s financing market. As part of our understanding of any transaction and its ability to be financed, we tend to focus on a few key indicators, of which value and sponsorship are crucial to the process.
Valuation is largely based on in-place cash flows with a cautious look toward pro-forma increases in income and reduced expenses, resulting in an improved net operating income. Financial trend analysis of an asset becomes a focal point of the underwriting process and often directs the expectation of the operations going forward. If the asset has a “story” and the market positioning can corroborate the turnaround strategy, it greatly helps the lenders in pushing value and increasing leverage. The sponsor’s financial strength and track record in operating real estate help complete the overall comfort level with the lender and reduce the operational risk once a loan is in place for the asset. The borrower’s local presence, operational experience and financial wherewithal are key components to successfully closing any transaction these days.
Lending still remains controlled as banks slowly shake off the over-cautious approach adopted in the aftermath of the financial crisis. With these points in mind, it is clear that the commercial mortgage market still has a ways to go to reach stability, let alone a full-fledged recovery. That said, at Johnson Capital we understand the factors that control this industry and are here to provide our clients with the best advice and financing options to help them achieve success in their real estate transactions. Our mortgage bankers recognize the opportunity to meet the growing demand for financing loans either through local banks, life insurance companies, CMBS originators or bridge lenders.
Founded in 1987, Johnson Capital is one of the country’s top real estate capital advisory firms with eighteen locations nationwide. Their services include debt placement and acquisition financing for permanent, construction and repositioning in addition to joint venture equity placement for individual assets, portfolios, entities and discretionary funds. Johnson Capital transactions have ranged in total funding from $1 million to over $300 million and have financed all property types, including: multifamily, office, retail, industrial, hotels, mixed use, manufactured housing, credit-tenant leases, single-family housing and land developments. For more information about Johnson Capital, log on to their website at: http://www.johnsoncapital.com/. Eric Fixler is the Managing Director of the Johnson Capital office in Boca Raton Florida. He can be reached at (561) 337-1449 or ericfixler@johnsoncapital.com.
Continuing Education: Engineering-based Cost Segregation
Duffy + Duffy Cost Segregation Services is sponsoring several seminars in June: The 5-hour seminar addresses engineering-based cost segregation and is eligible for the following continuing education credits: 2 CPE cost segregation, 1 CPE energy tax deduction and 2 CPE SEC 1031. Seminars are scheduled for the following locations and dates:
All seminars include continental breakfast.
Click here for more information or to register.
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- Pittsburgh -- Friday, June 1
- Cleveland -- Monday, June 4
- Toledo -- Wednesday, Jun 6
- Detroit -- Friday, June 8
- Columbus -- Monday, June 11
- Cincinnati -- Wednesday, June 13
All seminars include continental breakfast.
Click here for more information or to register.
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Labels:
Commercial Real Estate
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Continuing Education
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Taxation
Real Estate 101: Other deed forms--quit-claim and survivorship
In earlier posts, I wrote about the difference between general warranty deeds and limited warranty deeds and about fiduciary deeds. However, there are a couple more deed options in the State of Ohio.
Probably the most well known of the other deeds is the quit-claim deed. This is the ‘I make no promises, you’re on your own’ deed. While general and limited warranty deeds provide a warranty on title to the grantee of some period of time, a quit-claim deed does not. The grantee is taking title ‘as is’ with no recourse back to the grantor if a problem with title to the property arises later. The quit-claim deed form is addressed in the Ohio Revised Code (ORC) at section 5302.11.
Another deed form is the survivorship deed. This form can be used when any interest in real property is being transferred to 2 or more persons. It creates a survivorship tenancy in the grantees, and upon the death of one of the grantees, vests that deceased grantee’s interest in the survivor or survivors, or the the survivor(s)’ separate heirs and assigns. A survivorship deed may include covenants for a general or limited warranty or exclude such warranties, as in a quit-claim deed. Typically you will see language as follows:
“__________ (marital status), of _________ County, for valuable consideration paid, grant(s), (include covenants in any), to ___________ (marital status) and _________ (marital status), for their joint lives, remainder to the survivor of them, whose tax mailing addresses are ______________, the following real property: ….”
The survivorship deed form is addressed at ORC section 5302.17.
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"Caveat Home Buildor"
The doctrine of caveat emptor (“Let the Buyer Beware”) is still alive and well in Ohio, generally precluding recovery in an action by a purchaser against a Seller pertaining to a property’s defective condition if :
1) the condition complained of is open to observation or discoverable upon reasonable inspection;
2) the purchaser had the unimpeded opportunity to examine the premises; and
3) there is no fraud on the part of the vendor. Layman v. Binns (1988), 35 Ohio St.3d 176.
Even more claims are precluded if the real estate is sold "as is."When a buyer contractually agrees to accept property "as is," the seller is relieved of any duty to disclose the property's latent conditions and only has the duty not to commit an affirmative fraud. Kaye v. Buehrle (1983), 8 Ohio App.3d 381, 383.
While Ohio’s Seller Disclosure Act (R.C. 5302.30; the “Disclosure Act”) still requires sellers of most types of residential property to disclose known defects, the Disclosure Act does not directly modify the doctrine of caveat emptor by creating a new statutory fraud claim or by eliminating existing common law claims. In fact, Section 5302.30 (l) of the Disclosure Act makes it clear that R.C. 5302.30 is not intended to affect any (common law) remedies available prior to its enactment.
The Supreme Court of Ohio, however, in Jones v. Centex Homes, Slip Opinion No. 2012-Ohio-1001 has recently reminded us that a buyer of a “defective home” may have one other possible cause of action in its arsenal (against the home builder vs. the seller) -breach of the duty to construct a house in a workmanlike manner using ordinary care.
The facts of the case are quite simple. Paul Jones and Latosha Sanders purchased a new home from the builders, Centex Homes in 2004. After moving into their new home, they discovered that none of their electronic devices (computers, televisions, cordless phones) were working properly. For example, their hard drives were erasing, and television reception was practically non-existant. The buyers’ consultant alleged that the metal joists (structural members) of the home were magnetized, causing the problems. The buyers sued Centex after an amicable resolution could not be reached.
Centex’s basic argument was that the sales agreement was an “as is” contract that disclaimed all express and implied warranties, except a limited warranty that did not cover the problems expressed by the buyers. Both the trial court and the court of appeals agreed with Centex.
The Supreme Court of Ohio did in fact agree that there was a disclaimer of warranties in the contract, and that the limited warranty did not cover the defective condition. The Court even acknowledged that the obligation to construct in a workmanlike manner may arise from a contract. However, the Court concluded that the cause of action for failing to construct in a workmanlike manner is not based on contract, but on a duty imposed by law (“We conclude that in Ohio, a duty to construct houses in a workmanlike manner using ordinary care is imposed by law on all home builders”). While the Court did not provide a definition of “workmanlike manner”, the Court cited past court cases dating back to 1966 which included builders constructing homes in the low portions of their lots and failing to install foundation drainage systems. The Court also clarified that these decisions are not dealing with builders being held strictly liable for structural defects, on an implied warranty basis, but with home builders violating the duty to construct in a workmanlike manner, which essentially holds a builder liable only for negligence. The only other “guidance” provided by the Court was that “the duty does not require builders to be perfect”.
The “Jones Court” also reviewed the issue as to whether or not the duty to construct in a workmanlike manner could be waived. Without citing direct authority from prior cases, the Court firmly held that such a duty is “the baseline standard that Ohio home builders can expect builders to meet” and that accordingly, “a home buyer’s right to enforce that duty cannot be waived".
The bad news for home builders is that there is no “quick fix” to their form contracts as a result of this decision. The Court was quite clear that the buyer’s cause of action arises from a duty imposed law, not by contract and that while warranties (express and implied) can be waived by contract language, the duty to construct houses in a workmanlike manner cannot. Further bad news for home builders is that the Court reaffirmed its decision in McMillan v. Harpenau-Torbeck Builders, 8 Ohio St. 3d, 3 (1983) that established that the cause of action based on the duty to construct houses in a workmanlike manner extends to subsequent buyers. On the other hand, commercial builders can rest easy: the Jones decision does not apply to them…yet.
The good news for home buyers is that “caveat emptor” is no longer the only “game in town”. “Caveat home build-or” just moved in.
CLE Update: Drafting Real Estate Documents
The ALI-ABA is sponsoring a video webcast replay of "Real Estate Documents: Drafting for Success" on Monday, May 14, 2012 from noon to 3:15 pm ET.
The video seminar covers the issues faced by buyers and sellers in purchase/sale transactions and tenants and landlords in leasing transactions, including top tips from the panelists.
An encore presentation of the webcast is scheduled from June 29th.
Click here for more information.
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Labels:
CLE Update
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Landlord and Tenant
,
Leases
,
Purchase and Sale
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