Deal-Maker vs. Deal-Breaker: What is a Real Estate Lawyer’s Role in Real Estate Deals?

img_2262By: Alejandro E. Jordan, Esq.

Attorneys working on complex real estate deals frequently forget that they are being employed to advance their client’s business objectives, not destroy them with a litany of complications, caveats, and “what-ifs”.  After all, at the end of the day, clients employ their attorneys to be deal-makers, not deal breakers.

The difference between the two types of attorneys frequently boils down to their training, experience, and business acumen on the challenging deals that pay the premium dividends. Of course, real estate lawyers must advise their clients on the downsides of a particular deal, but the decision must remain with the client at all times.  Even though it is the client’s investment that’s at play (and not the lawyer’s), many lawyers like to “play client” rather than offering guidance and then letting the “real” client decide whether the deal should go forward.

At Jordan + Pascale, our client’s come to us to anticipate the potential pitfalls of a deal and to come up with the solutions necessary to make deals happen rather than to find ways to kill them and never give them a chance to yield the returns anticipated.

When it comes to negotiating the transaction and documenting the deal, our role as lawyers becomes more relevant.   At this stage, we have two major concerns:

1.     First, that the deal agreed to between the parties is truly set forth in the final documents of the deal; and

2.     Second, that the final deal documents do not include language that imposes unknown risks on the client.

It is also at this stage of the deal that the lawyers have the most power to “break” the deal.  Clients rely on their lawyer’s experience to navigate through these negotiations with a focus on the “solutions” to the myriad of issues that will likely come up.  It is at this point that the lawyers must provide for certain contingencies in the document drafting, in order to provide proactive counsel.  Although it is not likely that an attorney can prevent every single negative outcome through negotiation and documenting the deal, a seasoned and experienced real estate attorney can, however, reduce their client’s risks and protect them against many contingencies, even those that the client didn’t initially anticipate ahead of time prior to retaining counsel.

Many deals involve the services of a commercial real estate broker.  The deals that do not involve brokers should.  A good broker knows the market and has a sense of what business terms should be negotiated in a given situation.  In other words, the broker provides the business and financial information to the client that the client might otherwise expect the lawyer to provide.  Additionally, the broker will have worked with the client and will know intimately the goals and objectives of the client.  The more the lawyer is aware of their client’s goals, the better the documents drafted will reflect their client’s desires.

It is vital to realize that the attorneys drafting, reviewing and negotiating the deal are also creating the law that the transaction will be governed by.  Except for items prohibited by public policy and the concept of good faith and fair dealings, the parties are freely able to determine, by their documents, how their agreement is to be implemented and differences resolved.   Because of this heightened responsibility, the persons involved in the deal making are extremely powerful, and it is the lawyer’s job to clearly state the parties’ intent in “black and white.”

If you are looking for experienced dealmakers in Miami or Broward County, contact the attorneys at Jordan + Pascale, P.L. at 305-501-2836 or visit us at JordanPascale.com.