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Articles Posted in Real Estate Contracts

AJ-Headshot-2020-226x300By:  Alejandro E. Jordan, Esq.

With regard to capital appreciation, real estate has traditionally been considered to be one of the more popular investment options. Remember, it is a limited resource whose value is intrinsically related to its status as a scarce resource. What happens, though, when real estate begins to lose its sense of reality?

Please allow me to introduce you to the world of virtual real estate. A booming real-world housing market can be found in this area of the country. The entire spectrum of options is available, from real estate agents and leasing agreements to land owners. Except for the fact that it’s all taking place in virtual space, which was a far-fetched notion just a few decades ago but is now becoming a reality.

AJ-Headshot-2020-226x300By:  Alejandro E. Jordan, Esq.

This article provides a sample framework for the trade of real-estate ownership rights via the “encapsulation” of those rights in a Non-Fungible Token (NFT), as well as NFT participation in the DeFi sector and the potential of providing crypto title insurance, for added confidence and security.  Moreover, this Crypto-talk article will address some of the methods for transacting real estate using blockchain-enabled technologies, including NFTs, as well as the long-term strategy of “blockchainizing” or “NFT-ing” real estate in the United States.

The idea is to keep an electronic version of NFT ownership proprietary papers “on-chain,” where the NFT smart contract can modify the legal entity owner’s identity when the NFT is transferred from a seller to a bidder on an NFT Marketplace, for example. The key is to provide the legal framework that allows the NFT smart contract to make changes to legal documents, as well as the legal framework in the Terms of Use agreements that regulate the creation and listing of the NFT.

After digital collectible NFTs, why are real estate NFTs the next logical step?

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AJ-Headshot-2020-226x300By:  Alejandro E. Jordan, Esq.

The advent of blockchain technology is projected to have a big impact on real estate, the largest asset class by value, which is predicted to expand from $2687.35 billion in 2020 to $3717.03 billion in 2025. Blockchain is the core technology that enables the whole cryptocurrency ecosystem’s value proposition. It’s the technology behind Bitcoin’s security and the reason Ethereum smart contracts have a value. Smart contract developers can use on-chain logic to manage different real estate transactions, goods, and markets utilizing external data inputs and traditional settlement outputs, allowing real estate assets to become computerized as tokens on blockchain ledgers.

Holders can use their tokenized real estate assets on blockchains in interesting ways, such as trading them against reliable benchmarks or providing them as security for a loan, thanks to hybrid smart contracts, which combine the protection of blockchain networks with the richness of real-world data inputs. Furthermore, utilizing an external data source, exotic derivatives products may be produced and paid for on-chain, allowing stakeholders to protect against diverse real estate sector patterns.

AJ-Headshot-2020-226x300By:  Alejandro E. Jordan, ESQ.

In the rapidly changing world of real estate, it is critical to keep up with all of the latest innovations and technologies. With that in mind, I wanted to reach out with some information about one of the newest innovations in real estate called NFTs.

NFTs, or non-fungible tokens, are tokens that are issued on a blockchain, comparable to cryptocurrencies like Bitcoin. What differentiates the two is that NFTs are non-fungible meaning each token is unique, unlike tokens in cryptocurrencies which are identical. Meaning that they identify a unique item, digital or physical. The token can be sold to transfer ownership of this item while ensuring its authenticity.

By:  Alejandro E. Jordan, Esq.img_2262

This Article discusses the issues a landlord confronts when its commercial tenant files for bankruptcy protection. It also considers pre- and post-bankruptcy options available to a landlord to mitigate the impact of a tenant’s bankruptcy filing.

Section 365 of the Bankruptcy Code allows commercial tenants, as debtors, to take actions on their leases that greatly impact landlords. Subject to court approval and certain limitations, a debtor-tenant can use its reasonable business judgment to reject burdensome and unfavorable leases and assume leases that are beneficial to the debtor-tenant’s bankruptcy estate (11 U.S.C. § 365).

Purpose of Section 365 of the Bankruptcy Code

Section 365 of the Bankruptcy Code governs assuming, assuming and assigning, and rejecting commercial leases. These provisions serve to:

  • Further the federal bankruptcy goal of rehabilitating troubled companies while balancing the interests of all parties.

  • Maximize the value of the debtor-tenant’s estate (which includes the tenant’s interest in unexpired leases).

  • Provide some protection to non-debtor landlords.

In weighing the competing interests of the parties, Congress attempted to strike a balance, but the result is a system that favors the interests of the debtor-tenant (and its creditors) and leaves the landlord at a legal and practical disadvantage.

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By:  Alejandro E. Jordan, Esq.img_2262

Q.  IF A TENANT BREACHES THE LEASE: 

  • Are there any implied remedies available to the landlord, such as the acceleration of rent?

  • Is there a limitation on the landlord’s ability to exercise self-help?

  • Is there a common form of an eviction proceeding and, if so, what is the typical length of time for the proceeding?

  • Are there specific mechanisms for expedited remedies, such as waiver of jury trial or arbitration?

  • Is the landlord required to mitigate its damages without an express obligation to do so?

Implied Remedies

In commercial leases in Florida, if a tenant fails to pay rent when due, a landlord has a right to obtain possession of the premises (§ 83.05(1), Fla. Stat.). A landlord has the statutory right to demand double the monthly rent when a tenant fails to give up possession of the premises at the end of the tenant’s lease (§ 83.06, Fla. Stat.).

The landlord does not have the right to accelerate rent unless the lease specifically includes an acceleration of rent provision.

Self-Help Continue Reading ›

By:  Alejandro E. Jordan, Esq.img_2262

Q.  ARE THERE ANY LEGAL RESTRICTIONS ON: 

        • How much rent the landlord may charge?

        • Whether certain operating expenses (or other additional rent) may be passed through to the tenant?

Maximum Rent

Under Florida law, there are no restrictions on the rent a landlord may charge on commercial leases.

Operating Expenses

There is no limit to the operating expenses that may be passed through to the tenant, but almost all pass-through amounts are considered additional rent and are subject to Florida sales tax.

Q.  FOR SECURITY DEPOSITS: 

  • Must the landlord maintain security deposits in a separate bank account for each tenant?

  • Must a security deposit be in an interest bearing account?

  • Must the landlord pay all interest earned to the tenant or can the landlord retain a percentage of the interest earned as an administrative fee?

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By:  Alejandro E. Jordan, Esq.img_2262

Q.  DESCRIBE ANY LAWS ALLOWING THE TENANT TO ASSIGN ITS LEASE, OR SUBLEASE ITS PREMISES, WITHOUT THE LANDLORD’S CONSENT. IS A REASONABLENESS STANDARD IMPLIED WHEN THE LEASE IS SILENT ON WHETHER THE LANDLORD’S CONSENT TO AN ASSIGNMENT OR SUBLEASE MAY BE REASONABLY OR UNREASONABLY WITHHELD?

Under Florida law, the tenant may assign its lease or sublease its premises without the landlord’s consent if the lease is silent on assignments and subleases (Frissell v. Nichols, 114 So. 431, 434 (Fla. 1927)). If a lease requires the landlord’s consent to an assignment but is silent on the standard for the landlord’s consent, then an implied term is that landlord’s consent will not be unreasonably withheld and is subject to an implied covenant of good faith (Fernandez v. Vazquez, 397 So. 2d 1171, 1174 (Fla. 3d DCA 1981)). As a result, and because of concerns that criteria other than the ability to pay rent may not be considered in determining whether consent is reasonably required, it is expected commercial practice to include criteria for the granting or withholding of consent in a commercial lease. Continue Reading ›

img_2262By:  Alejandro E. Jordan, Esq.

The current COVID-19 Coronavirus crisis is having a critical impact on the Mortgage Industry, which could potentially make the 2008 financial crisis pale in comparison.

This short read will break down for you, in an easy to read format, exactly what the Mortgage Industry is up against and how servicers are being impacted by the current environment.  It will also cover how the Fed, who is trying to help, is only making things worse due to unintended consequences.

Perhaps most importantly, we will cover steps that the Fed should take to help minimize the damage done by this crisis.

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img_2262By:  Alejandro E. Jordan, Esq.

Effective January 1, 2020, the Florida state tax imposed rate per Florida Statutes section 212.031 on the total rent charged for renting, leasing, letting, or granting a license to use real estate property in the State of Florida is decreased from 5.7% to 5.5%.  This includes lease rent collected from retail spaces, offices, warehouses, and self-storage units or warehouse office combinations.

The reduction only applies to the state level tax – the local county option taxes are still in full effect.

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