Real Estate Lawyer

The Practical
Real Estate
Lawyer
Rearranging the Deck Chairs when the Ship Is
Going Down: Protecting Your Condemnation
Record for Appeal
James D. Masterman and Michael Rikon 5
No trial is perfect, and even the best, most carefully laid plans can
seem to fall apart when the judge makes an unexpected ruling, a witness proves weak or is unable to testify, or the jury returns a verdict
seemingly unsupported by the evidence. The best practice is to assume that every case will be appealed and, therefore, that the record
at trial must be protected. In this article, James D. Masterman and
Michael Rikon discuss the trial transcript, protecting the record by
ensuring that everything is actually recorded, preserving rulings,
statements, and actions by witnesses, expert qualifications, and completing the record whenever the court rules against you.
Severance Damages in Partial Takings Cases:
Lessons Learned and Future Considerations
Anthony F. Della Pelle and Richard P. DeAngelis 11
When only a portion of a property is condemned, the measure of damages includes both the value of the portion of land actually taken and
the value by which the remaining land has been diminished as a consequence of the partial taking. The diminished value of the remaining
property constitutes the severance damages visited upon that property as a result of the taking. This article by Anthony F. Della Pelle and
Richard P. DeAngelis focuses on the impact of the Karan decision on
the measure “severance damages,” also referred to as “damages to the
remainder” and how it modified the “special benefits doctrine” as well
as the implications for the application of the “project influence rule” in
partial takings cases going forward.
Reviewing Accommodative Easements:
Helping Your Client Do a Favor Without Causing
Harm (with Sample Inserts)
Andy Jacobson
17
Clients often ask for assistance in accommodating requests by third
parties for easements. The third party might be a public entity, a
utility company or a neighboring property owner or user. Because
the easement in question is being granted as an accommodation, the
client/grantor will desire to handle the matter in the most efficient
and inexpensive manner possible. Thus, the challenge for the client/
grantor’s attorney is to review the easement and protect the client/
grantor in an effective but cost-efficient manner. In this article, Andy
Jacobson discusses the appropriate approach, the nature of the
easement, its duration, title issues, consents, condition of the property,
indemnity, construction, repair, maintenance, and operation.
Unique Issues with Healthcare Leases
Brooks R. Smith
23
Healthcare real estate includes not only medical office buildings. Real
estate practitioners are likely aware of some of the numerous types of
facilities falling under the healthcare real estate umbrella, for example,
volume 31 | number 3 | may 2015
ambulatory surgical centers, long-term acute care hospitals, assisted
living facilities, wellness centers and rehabilitation hospitals. This article by Brooks R. Smith discusses the Affordable Care Act, hospitaldriven monetization, the Stark Law, the Anti-Kickback Statute and the
False Claims Act, tenant inducements and enhancements, exclusives
and restrictions, space and use requirements, compliance with laws,
changes in the parties, relocation, landlord liens, and savings clauses.
Are Mezzanine Loans Really the Lesser of
Two Evils?
Marianne Ajemian
35
Recent experience has shown that mezzanine loans are more widely
utilized than preferred equity transactions as a form of subordinate financing. Yet, from the senior lender’s perspective, is a mezzanine loan
the more desirable transaction structure for subordinate capital? After
reviewing the basic features of mezzanine loans and preferred equity
transactions, this article by Marianne Ajemian will examine what do
(or should) senior lenders think about preferred equity transactions,
the structure of mezzanine loans and preferred equity transactions,
and whether preferred equity transactions are the better choice for
senior lenders.
Premature Compensation and a Few Solutions
to the Problem (with Sample Provisions and
Model Broker Registration Agreement and
Commission Waiver)
Joshua Stein 45
Leasing brokerage can be a great way to match a property owner to
an eager tenant. But in a common situation, the tenant and the property owner work out what they think will be a deal and an acceptable lease, and then things break down and there is no deal and no
lease—and the broker sues for a commission anyway. This article by
Joshua Stein discusses what an owner can do to protect itself from
such a result and provides both sample clauses and a model brokerage agreement and commission waiver that can be adapted to shield
the property owner from the “premature compensation” problem.
The Programmatic Real Estate Joint Venture
Josh Kamin, John Mallison, and Vytas Petrulis
53
Programmatic real estate joint ventures are on the rise. The “why” is
not that surprising. Current market conditions are healthy. The economy in general and the real estate industry in specific has rebounded
since the Great Recession. Capital sources are plentiful, and the capital
available to invest is significant. The best and most talented sponsors
(e.g., developers, operators) (“Sponsors”) survived the Great Recession and see new opportunities, but ones where expertise is required
to maximize value. This article by Josh Kamin, John Mallinson, and
Vytas Petrulis discusses structural forms of relationship, the unique
nature of the relationship, deal sharing and exclusivity, and pooling.
The Practical
Real Estate
Lawyer
Joseph L. DiPietro, Editor
Sue Cyliax, Strategic Marketing
EDITORIAL BOARD
David Fishman
Gordon Feinblatt, LLC, Baltimore,
Maryland
Raymond S. Iwamoto
Schlack Ito, Honolulu, Hawaii
Leslee Lewis
Dickinson Wright, Grand Rapids,
Michigan
James D. Prendergast
First American Title
Michael Rikon
Goldstein, Rikon & Rikon, New York City
Linda D. White
SNR Denton, Chicago, Illinois
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