Real Estate Deals & Transactions

The housing market is back—and then some!

Published on: July 18, 2020 | by ESQ.title

Despite the crippling and ongoing coronavirus pandemic, millions out of work, a recession, a national reckoning over systemic racism, and a highly contentious presidential election just around the corner, the residential real estate market is staging an astonishing rebound.

Median home prices shot up 6.2% year over year in the week ending June 27. Homes are selling faster than they did in 2019, when no one had heard of COVID-19. And bidding wars are back as first-time and trade-up buyers who have lost out on other homes slug it out.

It’s a far cry from the Great Recession of more than a decade ago, when home prices plummeted, mortgages were plunged under water, and foreclosures seemed to appear on just about every block. But of course, the overbuilt housing market and subprime mortgages helped cause that crisis. Back then there were a glut of homes for sale and not many eager buyers. This time it’s reversed.

To be sure, there are plenty of danger signs ahead in this economy, including continuing historic levels of unemployment and rising coronavirus infection rates in many parts of the country. But, for now, real estate is bouncing back much quicker than other bellwether industries.

So what’s driving this surprisingly hot market? There’s a slew of culprits. Continue Reading ›

Alejandro E. Jordan, ESQ. Recognized as Florida Legal Elite 2020 Real Estate

Published on: June 27, 2020 | by ESQ.title

ST. PETERSBURG, FL. (June 22, 2020) – Alejandro E. Jordan, ESQ. of ESQ.title, Coral Gables was recently recognized in the 2020 edition of Florida Trend’s Florida Legal Elite™.

The list of 1,071 honorees represents just over 1% of the active Florida Bar members, including attorneys in private practice as well as top government and non-profit attorneys who practice in Florida.

Florida Trend invited all actively practicing Florida lawyers to name the attorneys that they hold in highest regard – lawyers with whom they have personally worked and would recommend to others.

Home Mortgage Loan Modifications under the CARES Act

Published on: April 29, 2020 | by ESQ.title

By: Alejandro E. Jordan, Esq.

If you are experiencing difficulty making on-time mortgage payments due to the national coronavirus emergency, forbearance may be an option for you. Forbearance can help consumers get back on their feet during short-term financial difficulty, but there are a few things you need to know and some important decisions you’ll need to make. Forbearance is when your mortgage servicer, that’s the company that sends your mortgage statement and manages your loan, or lender allows you to pause or reduce your payments for a limited period of time.

Forbearance does not erase what you owe.

You’ll have to repay any missed or reduced payments in the future. So, if you’re able to keep up with your payments, keep making them. The types of forbearance available vary by loan type. If your mortgage is backed by the federal government—this includes FHA, VA, USDA, Fannie Mae and Freddie Mac loans—provisions of the recently enacted CARES Act allow you to temporarily suspend payments if you are experiencing financial difficulty due to the impact of the coronavirus on your finances. Loan servicers may also have forbearance or deferment options for non-government backed or private loans, but the exact options available to you may differ.

Here’s how this works for federally-backed mortgages under the CARES Act.

If you are experiencing financial hardship due to the coronavirus pandemic, you have a right to request forbearance for up to one hundred eighty days.

You also have the right to request an extension for up to an additional one hundred eighty days. But, you must contact your loan servicer to request this forbearance. There won’t be any additional fees, penalties or interest added to your account. But, your regular interest will still accrue. Other than telling your servicer that you have a pandemic-related financial hardship, you won’t need to submit additional documentation to qualify for this forbearance.

It’s important to find out what options are available to you.

Commercial Real Estate Tenant Bankruptcies: Issues and Strategies

Published on: April 19, 2020 | by ESQ.title

By: Alejandro E. Jordan, Esq.

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.

Q&A – Commercial Real Estate Leasing – Remedies

Published on: April 12, 2020 | by ESQ.title

By: Alejandro E. Jordan, Esq.

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 ›

Q&A – Commercial Real Estate Leasing – Rent and Security Deposits

Published on: April 12, 2020 | by ESQ.title

By: Alejandro E. Jordan, Esq.

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?

Q&A – Commercial Real Estate Leasing – Assignment, Financing, and Transfers

Published on: April 12, 2020 | by ESQ.title

By: Alejandro E. Jordan, Esq.

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 ›

Why are Mortgage Rates Up, While the Fed Rate was Reduced to ~0%?

Published on: March 28, 2020 | by ESQ.title

By: 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.

Coronavirus COVID-19 Real Estate Task Force | ESQ.title Provides Tactical Step by Step Guide

Published on: March 18, 2020 | by ESQ.title

By: Alejandro E. Jordan, Esq.

As mentioned in our previous post, the number of COVID-19 coronavirus (“Coronavirus”) cases continues to increase, and with the World Health Organization raising its threat assessment of Coronavirus to its highest level, businesses in Miami-Dade and Broward Counties are becoming increasingly aware of the many challenges that are ahead.

At ESQ.title, we have established a Legal/Real Estate Task Force focused on Coronavirus-related issues. Our aim is to provide guidance and plan for solutions to clients’ business and legal needs. Below, we address some of the important issues business owners and individuals should consider:

Real Estate Transactions

General:

Consider whether a transaction will be delayed or impacted due to the Coronavirus (for example, travel restriction-related delays, delays in conducting due diligence, a delay in signing a lease or guaranty because the parent company of a tenant is based in an impacted area, delayed inspection of construction progress, unscheduled holidays delaying deadlines, supply chain issues — see below — etc.).
Consider options to mitigate the impact on construction projects of the supply chain effects and consider rights and remedies under construction contracts.
In order to mitigate any slowdowns in transactions, property owners and brokers should consider new technologies allowing for virtual tours of assets to be used in place of physical asset tours and inspections.
Prepare for a spike in litigation due to construction delays, missed deadlines on purchase and sale agreements, leases and contracts generally.
Prepare for potential default claims.

Florida State Sales Tax on Commercial Leasing – Reduced to 6.5% for Miami-Dade, Broward and Palm Beach Counties as of January 1, 2020

Published on: December 30, 2019 | by ESQ.title

By: 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.

Forbearance does not erase what you owe.

Here’s how this works for federally-backed mortgages under the CARES Act.

It’s important to find out what options are available to you.

Purpose of Section 365 of the Bankruptcy Code

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

Self-Help Continue Reading ›

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?

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?

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?