BLOGS: Womble Commercial Real Estate

Friday, October 21, 2016, 11:09 AM

What's an 18 hour city?

Ely Portillo, of the Charlotte Observer, brings us all up to speed on defining commonly thrown about real estate development jargon. 

Low-rise? Mid-rise? Mixed-use? Your guide to jargon in a city of cranes

"Peanut Buttering is Better than Firebombing"

Hard to argue with the logic of someone drunk on blackberry brandy!  Thankfully, as the deputy wryly notes, she didn't use chunky peanut butter ... oh the carnage!!

Woman Smears 30 Cars w/ Peanut Butter in Trump Protest

Christina Ferguson. (Courtesy Portage Co. Jail)
Christina Ferguson. (Courtesy Portage Co. Jail)
Woman mistook conservation club meeting for Trump rally
By Brandi Makuski
An Amherst Junction woman has been charged with disorderly conduct after allegedly smearing peanut butter on several vehicles parked outside what she mistakenly thought was a Donald Trump rally.
Christina Ferguson, 32, was arrested on Oct. 17 after disrupting what was actually a meeting of the Tomorrow River Conservation Club.
According to the complaint, Ferguson entered the meeting, which was being held on the 3900 block of Second St. in Amherst Junction, at about 9:30 PM on Monday, holding a jar of peanut butter and yelling at the club members about how much she hated the presidential candidate.
Ferguson left the meeting after being asked to do so, but after a few minutes one of the members suggested they check the parking lot to “make sure she wasn’t doing anything to their vehicles after leaving.”
As they went outside, one man saw Ferguson spreading peanut butter on a vehicle. He yelled at her, according to the complaint, and watched her walk into a nearby apartment complex. The man then called the Portage Co. Sheriff’s Office.
When deputies attempted to question Ferguson, a man at the apartment claimed she had been home all night and couldn’t have been involved in the incident. Ferguson also claimed she hadn’t left the apartment that night, and was repeatedly licking her fingers — indicating the presence of an edible substance on her fingers, according to the complaint — while talking to the deputy.
After being identified by a member of the conservation club, Ferguson then admitted to crashing the meeting and smearing vehicles with peanut butter. When asked why she did it, Ferguson become “very emotional”, according to the complaint, and talked about “how much she loved Hillary Clinton and hated Donald Trump.”
She also said she’d been “terrorized” by people who support Donald Trump.
“Peanut buttering is better than firebombing, and Trump plans on firebombing everybody in other countries,” she said, according to the complaint.
After the deputy explained to her that she’d actually interrupted the meeting of a nonprofit conservation organization, and that it was not a political meeting, she apologized and said she was “just fed up about the entire election.”
According to the complaint, Ferguson smelled of alcohol; she later admitted to drinking beer and blackberry brandy that night, and blew a .218 on the deputy’s breathalyzer.
The peanut butter Ferguson allegedly used in the incident was described in the deputy’s report as a “family-size jar of low-sodium, creamy natural Jif.”
“Fortunately it wasn’t chunky peanut butter, so vehicles didn’t get scratched,” said Chief Deputy Dan Kontos.

Tuesday, October 18, 2016, 8:08 AM

On the lighter side -- Daddy's Little Angel

Also from The Scottish Legal News ... I especially like the part where the clueless Dad thinks the "job interview" went particularly well!!

A young woman accused of robbing a bank duped her dad into being her getaway driver by telling him she was going there for a job interview.

Chelsea Wilson, 24, was arrested on Friday morning and later admitted robbing a TD Bank in Fort Lauderdale, Florida the previous afternoon.

It transpired that Wilson’s own father had driven her to the heist because she had told him she was actually trying to get a job there.

When later questioned by police, he told them that when his daughter emerged with $300 in cash, he simply believed it had gone particularly well and she had been given an advance.

In fact, according to the Florida Sun-Sentinel, sometime between leaving her father’s car and going to the “interview”, Wilson covered her blonde locks with a red wig and hat and put on sunglasses.

She then allegedly entered the bank shortly before 4pm and handed the teller a handwritten note demanding money:

“You have exactly one minute to give me all your $50 & $100 bills from both your drawers or I will shoot you! No dye packs, no alarms follow these instructions and no one will get hurt, act normal.”

She then took her haul to the bank’s car park and to an SUV that FBI agents later determined was registered to her father.

A witness reported Wilson after recognising her as someone wanted in connection with four other recent robberies, the Palm Beach Post reported.

She later admitted to committing all five robberies and had spent the money from the most recent heist on groceries.

Ministry of Silly Walks? No, it's the Department of Exiting the European Union

In Brexit withdrawal?  Never fear ... here's your fix, courtesy of Hannah Starritt and The Scottish Legal News!

Blog: What is the Department of Exiting the European Union and what does it do?

Hannah Starritt (pictured), solicitor at Turcan Connell, explains the purpose of the Government's new Brexit department.

The Department of Exiting the European Union (EU) was created following the referendum result in June 2016 for the UK to leave the EU.

Theresa May created the department following her appointment as Prime Minister and, in turn, appointed David Davis as its Secretary of State. It is responsible for overseeing negotiations to leave the EU and establishing the future relationship between the UK and EU.

Department Responsibilities

The main responsibilities include policy work to support the UK’s negotiations to leave the EU and to establish the future relationship between the EU and the UK; working closely with the UK’s devolved administrations, Parliament, and a wide range of other interested parties on what the approach to negotiations should be; conduct negotiations and support the PM; to lead and co-ordinate cross-government work.

Secretary of State David Davis made a statement in the House of Common on 10th October regarding the next steps in leaving the EU.

Next steps for Brexit

The first will be by bringing forward the Great Repeal Bill that will mean the European Communities Act will cease to apply on the day the UK leaves the EU. This will end the authority of EU law.

He stated that the Government will reject any attempt to undo the referendum result, any attempt to hold up the process or any attempt to keep Britian in the EU by the back door.

He stated that his whole approach is about empowering the UK and that the Great Repeal Act will convert existing EU law into domestic law where practical. There is 40 years’ worth of laws which require to be reviewed.

Decisions by the European Court of Justice will cease to binding on the enactment of the Great Repeal Act.

The exit of the UK from the EU must work for the whole of the UK. No part of the UK shall have a right to veto however, the Government will consult the devolved administrations.

Article 50

It was noted that the Bill was a separate issue from triggering Article 50 of the EU Treaty. The Bill will prepare the UK for the exit and provide the legal framework.

Article 50 will be triggered no later than March 2017.
  • Hannah Starritt is a solicitor at Turcan Connell. View her profile here.

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Thursday, October 6, 2016, 11:17 AM

Portfolio Acquisitions Typically Require Specialized Due Diligence Capabilities

... and I can speak from experience!  Over the past 3.5 years, my team at Womble has handled title, survey and zoning review for nine (9) transactions involving up to 864 properties across multiple states and several Canadian provinces.  It ain't easy and you need to find the right expertise, as Ian Bone sets out in his LinkedIn article below.

Growth in Commercial Real Estate Deals Requiring Specialized Due Diligence

The rising real estate market in many U.S. cities is prompting a surge in commercial real estate transactions, with expectations for another two years of substantial growth. Veteran investors in commercial property turn over every stone to limit the possibility of post-transaction surprises. Newcomers should pursue the same approach and resist rushing into a deal, given the breadth of risks at play.

The acquisition of commercial real estate requires intensive due diligence to uncover key information that may not be readily apparent or available in evaluating the value of a property or portfolio. Such hidden details can doom the financial merits of an otherwise profitable deal, turning the transaction into a costly mistake.
There are essentially three types of investors engaged in acquiring commercial real estate. Each is driven to make an acquisition for different objectives:
  • Investment Purposes
  • Real Estate Development
  • Business Operations (where the building will be occupied by the investor’s organization)
These different objectives alter the due diligence process and depth. 
The risk for all investors in commercial real estate, especially now, is to rush into what seems to be a lucrative deal simply because of the robust real estate market, strong property fundamentals, and the broad recovery of the financing sector, evidenced by increased lender competition. Eager to engage in what appears to be a sure opportunity with little risk, inexperienced investors may jump in where more seasoned buyers fear to tread. Certainly, less than thorough due diligence by all investors may be a ticking time bomb, especially given concerns over a rising real estate bubble. No investor can risk a costly surprise that rears its head in the aftermath of a transaction’s closure.

What is Due Diligence for Real Estate? 

The chief aims of real estate due diligence are to thoroughly inspect the fundamentals of the property, seller, financing, and compliance obligations to reduce and mitigate financial uncertainties. The effort is not for the fainthearted. Prospective buyers must scrupulously examine zoning restrictions, potential liens, and possible encroachments on the property. Existing structures must be fully inspected to discern needed repairs and their costs. They must determine whether or not they will absorb legacy liabilities from prior owners’ legal and regulatory violations. If the property is largely financed, they need to address their ongoing ability to make required payments to the lender.

Many sophisticated commercial real estate investors consider it a best practice to commence detailed due diligence before the purchase contract is signed. The alternative is to carefully lay out in the contract for sale the items of due diligence that the buyer must undertake and the time this will take. This also serves to compel the seller to deliver required documents on an expeditious basis. Certain findings may adversely affect the acquirer’s anticipated financial return, giving buyers a stronger hand in the transaction negotiations to ensure a fair and accurate property valuation, given the risks that have been unearthed.

Given the vast array of documents in a commercial real estate transaction, it is important to prepare a due diligence checklist, marking off each item of concern once it has been addressed. Depending on the investor type and the entity’s financial objectives, this checklist can be quite long. Nevertheless, it would be imprudent to close a deal before appreciating and fully evaluating the risks against the rewards.

Getting the Basics Down

Due diligence on a commercial real estate opportunity begins with understanding the transaction’s objectives. The investment goals in pursuing a commercial real estate transaction serve as the foundation for the due diligence that follows. For instance, the purchase of an income-producing property like an apartment building will require the investor to verify the existing tenant leases and examine each tenant’s rental payment history. Otherwise, the investor cannot ensure the financial stability of the anticipated income stream. On the other hand, the initial focus of a commercial real estate developer is on the intended use of a building and whether or not the property can be permitted to achieve this intent.

Acquisitive parties should never engage in a commercial real estate transaction without personally visiting, walking through, and inspecting the premises. During the walk-through, buyers must analyze the property or building in terms of the intended use. Concerns that arise will affect the negotiations. For example, a property that a buyer plans to turn into an office complex with ample parking may be hilly and expensive to grade to accommodate the anticipated volume of vehicles.

Given oft-disparate federal, state, and local environmental regulations, investors also must ensure that a property or building complies with current rules and laws, and planned and potential ones in future. An example of this moving target is environmental sustainability and liability. Investors need to know that a particular regulation will phase in at a later date, in some cases several years away.
Before financing the transaction, lenders are likely to require an environmental suitability assessment. A best practice is to undertake this evaluation anyway, irrespective of financing issues. Recruit a reputable environmental engineering firm to assess past uses of the building or property, in addition to collecting evidence of possible contaminants like mold, lead, and asbestos, and the presence of underground storage tanks. What appears to be perfectly safe and legal in a visual inspection can turn into a litigation minefield in the future, since the investor will inherit these potential liabilities and be required by law to eliminate the discovered problem.
Lastly, although sellers are legally required to provide certain disclosures on a property’s physical characteristics, such as easements, encumbrances, and other restrictions, it is prudent for the investor to personally review, validate and check off each item. A best practice when acquiring commercial real estate is to never automatically assume the same degree of disclosures from the seller that exists when buying residential property. Key differences exist.

Diverse Documents

New investors in commercial real estate should consider the value in retaining the assistance of a specialized commercial real estate attorney. Numerous legal documents must be accessed, evaluated, and verified. At a minimum, these documents include the title, leases, zoning regulations, surveys, tax certificates, and the seller’s financial records and operating statements. All documents should be listed in the aforementioned checklist and stored initially in a VDR (virtual data room).
Once escrow has been opened, the investor should order a preliminary title report. The title will provide information about the property, such as its current and past ownership and the existence of liens, encumbrances, and easements. Once these factors are understood, a best practice is to undertake a professional survey of the property to corroborate the particulars, as well as to confirm lot size, access roads, boundary lines, surface waters, rights of way, soil condition, and possible property improvements and alterations. To verify the accuracy of the title, it is prudent to contract with a title insurance company, which will commit to absorbing unanticipated financial losses due to possible title defects.

Investors also must ensure compliance with current zoning rules and property codes. With regard to the former, a smart tactic is to solicit documentation from the relevant municipality to ensure the current and anticipated use of the property is compliant with existing zoning regulations and land use classifications. For buildings that are relatively new, a review of the certificates of occupancy can indicate compliance with relevant property codes. With regard to the assessed valuation of a property, this information can be obtained through the tax certificates. The latter will also indicate the standing of property tax payments. As a precaution, buyers should consider reaching out to an outside zoning specialist to independently confirm the received information is accurate and up-to-date.

With regard to undeveloped land, investors must determine whether or not the intended use of the property is permitted. The existence of wetlands must be determined, as must the presence of endangered species that inhabit the area or regularly visit it. In both cases, the land can still be developed, assuming a compliant process is followed.
For an income-producing property like an office building or apartment complex, a thorough review of the lease payment history will shed light on the orderly and predictable flow of rental income. Another best practice is to scrutinize the seller’s financial records and operating statements, assuming these can be obtained, to discern gaps in lease payments.

A key item is to determine the compliance of an existing structure with the Americans with Disabilities Act. Each state has its own regulations regarding accessibility and needed modifications to ensure compliance, in addition to the documents pertaining to these issues. The federal government has created a checklist helping investors understand the rules prior to acquiring a building, property or undeveloped land.
All of these many documents are needed to rigorously evaluate the risks of an investment versus its potential return. In each case, once the data in the document has been validated as accurate or inaccurate, mark it off on the checklist and store it in the VDR. Compare the findings to the anticipated returns or revenue streams that the transaction will produce. These details become ammunition in the negotiations to close the deal. Once the transaction has closed, transfer and store the documents for compliance purposes to a highly secure, centralized platform that provides easy accessibility. 

Know the Seller

Before venturing into a commercial real estate transaction, the standing, reputation, and track record of the seller should be fully investigated and vetted. Not only may this indicate a less-than-scrupulous transacting partner, the reputation of the current owner (and even occupants) may have a negative impact on future earnings.
Ask for and examine the seller’s tax returns, service contracts, loan documents, past litigation history, and any other items that are related to the entity’s financial status, prior use of property, and integrity. Such insights will be useful in negotiating a fair deal, or making a determination to pass on the prospect.


Current commercial real estate market conditions make this an opportune time for investors to explore the financial value and risks of purchasing property and commercial buildings. The key word is “explore.” A headlong rush into a transaction without comprehensive due diligence will trip up even the most sophisticated investor.

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Wednesday, October 5, 2016, 12:41 PM

Brexit and UK Healthcare Real Estate

We just can't get enough of Brexit, can we?  Seems every day I see something new on my news feed or Twitter feed about the impact of Brexit on the global economy or UK economy or Scottish economy.  Funny thing is, a lot of these articles seem to contradict each other.  Makes you wonder if they're just filling content ... hmmm ...

Anyway, here's an online article from "Anonymous" at ... I know, nothing shouts credibility like "the internet" and "anonymous", right?  But, hey, there are facts and figures and charts.  The thing is ... the post-Brexit vote economy in the UK arguably is rebounding from the Brexit vote swoon, but real estate continues to lag.  Healthcare, on the other hand, appears to be picking up ... so maybe ...

UK property sectors fail to recover from Brexit wrecking ball 

Nearly the whole UK stock market has regained its pre-Brexit level, but there are three sectors clearly underperforming: real estate, telecoms providers and consumer discretionary. Does this make for an opportunity? It depends mainly on your opinions on the property market.

UK stocks quickly took back the losses suffered in the immediate aftermath of the surprise UK referendum result, as swift action from the Bank of England combined with a quick turnaround in prime minister to underpin confidence in the markets. The FTSE 100 is now nearly 7% above where it was at the close on June 23, while the FTSE 250 is up 3.4%.

The best-performing sectors in that turnaround have been the materials, health care and information technology sectors, while there are three clear laggards: real estate, the consumer discretionary sector and the telecoms providers. The question for investors is whether those laggards represent an opportunity in a market that has shrugged off Brexit, for now at least.
FTSE 100 sector indices chart

FTSE 100 sector indices chart

FTSE 100 sector indices chart
FTSE 250 sector indices chart

FTSE 250 sector indices chart

FTSE 250 sector indices chart
The FTSE 100 real estate sector is made up of four companies: Land Securities, Hammerson, British Land and Intu Properties. The whole sector was hit hard in the wake of Brexit, with the stocks falling and managers of many open-ended UK real estate funds freezing redemptions as money was pulled. The fear is that demand for offices and other commercial premises will weaken as businesses shift operations to continental Europe, hitting property valuations and perhaps forcing a fire sale of properties by some owners. For retail space owners like Hammerson, the fear is that demand for space will weaken as the economy stutters in the wake of the Brexit vote.
There’s no doubt that some impending property deals were pulled in the wake of the Brexit vote, and confidence in the sector remains weak. However, as with everything to do with Brexit, it’s not yet clear what sort of impact the UK’s commercial property sector will feel in the longer-run.

Some of Hammerson and Intu Properties’ customers are listed in the consumer discretionary sector that has also underperformed in the weeks since the Brexit vote. This is a large sector that includes the UK housebuilders, travel companies, clothing and electronics retailers, betting and entertainment companies and assorted others like media buyer WPP and catering giant Compass Group. Essentially, they’re consumer-facing companies more greatly exposed to volatility in consumer sentiment than the consumer staples sector that includes the food manufacturers and retailers.

Can the rally in UK housebuilders continue? 

A look inside the FTSE 100 consumer discretionary sector reveals a wide spread in performance in the wake of the Brexit vote. Intercontinental Hotels, luxury fashion company Burberry Group, WPP, engineer GKN and Compass Group are all more than 10% up on their pre-Brexit levels. At the other end of the scale are the residential property companies, retailers including Dixons Carphone, Marks & Spencer and Next and media companies ITV, Sky and Pearson. Once again it’s the property sector that’s the real drag, with Berkeley Group and Taylor Wimpey some 19% below their pre-Brexit level and Persimmon and Barratt Developments down by 13% and 15% respectively.

Brexit is just one factor among several that are having a major impact on the UK housing market at the moment. Recent changes to stamp duty – the UK’s house buying tax – and to the tax regime governing buy-to-let investments, has taken the steam out of the property market as a whole in the south east and the top end of the market elsewhere. Meanwhile, the Brexit vote has apparently driven sellers away from the market, and that’s helping prop up house prices.

The interesting thing about the housebuilders is that they currently operate in a somewhat different market to the UK’s larger used property market. Berkeley is most exposed to the downturn in the market in the south east, but the others are still reporting strong demand and record levels of completions post-Brexit as government assistance programmes continue to help prop-up demand for new build homes. They’re also operating in a market that still has a chronic shortage of housing supply. That shortage may ease as the Brexit process continues as long as net immigration falls, but it’s not going to go away any time soon. Still, the stocks have always been heavily exposed to sentiment and conditions in the broader UK housing market and there’s no doubt the Brexit vote combined with recent government intervention has knocked sentiment in that market.

Take a look at Persimmon as an example. The stock has rallied strongly since diving in the wake of Brexit, but is still some way from its pre-Brexit highs. That’s despite the company reporting a 6% rise in both legal completions and average selling prices in the first half of the year, a 29% rise in pre-tax profit, and saying visitor numbers to its sites were 20% up on the year even in the wake of the Brexit vote.
Persimmon price chart

Persimmon price chart

Persimmon price chart

Concerns about consumer spending also at fore 

The third sector to have underperformed since Brexit is the telecommunications services sector. BT Group and Vodafone make up the FTSE 100 sector, with Vodafone up 1.56% and BT down 11.3% compared with the day before the Brexit result. That makes BT the real laggard.

BT has changed a great deal in recent years, as it re-entered the mobile market with its acquisition of EE and it moved to try and catch up with Sky in the TV market by paying billions of pounds to become a major football presenter. The TV move has made it much closer to the likes of consumer discretionary companies Sky and ITV, both of which are still well below their pre-Brexit levels. The mobile market is also highly competitive, and consumers have been shown to spend less on data and hold onto their phones for longer when they’re feeling economic strain. So it’s perhaps not surprising that BT is a straggler, especially compared with Vodafone which has seen its markets in southern Europe start to stabilise after many years of pain.

This all suggests there will need to be a continued re-rating of the property sector if the current post-Brexit dawdlers are to catch-up with the best-performing sectors of the UK equity markets. There will also have to be clear signs the UK economy will weather the Brexit storm better than many predict and that real wages start rising to fill consumer pockets to help boost spending on discretionary items.

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Like Robert De Niro in "Awakenings" ...

I've awakened from a LOOOOOONG siesta!  Let the blogging commence!


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