PRACTICE AREAS

 

Practice Overview

 

Real Estate is at the core of our transactional practice. Commercial real estate has been, and continues to be, the primary focus of the Firm’s practice since its inception. Our broad representation covers many property types: office, industrial, retail, multi-use, residential and commercial land and development, and hospitality. Our expertise covers a diverse range of core and specialty transactional disciplines:

 

          Purchase and sale transactions

          Option transactions

          Leasing

          Project development and construction

          Project finance (A&D, construction and permanent)

          Ground leasing

          Secured lending (senior and mezzanine loans)

          Brokerage representation

          Distressed real estate and loan asset and portfolio acquisition and disposition transactions

          Entity formation (limited partnerships, limited liability companies, corporations)

          Private equity syndication (sponsored exempt equity raises)

          Venture formation and co-invest structures

          Subdivision and project development documentation

          Residential and commercial condominium and planned unit development and documentation

          Property assembly

          Portfolio acquisition (loan and REO)

 

We believe that clients should spend their time educating their lawyers about their transactions, not about their businesses. Lawyers must already understand the business in which their clients operate. Our attorneys have taken the time and interest to not only master the legal aspects of real estate, but are also students of the business of real estate. Our attorneys are conversant in real estate portfolio investment theory, urban economics, community development principles, project infrastructure development and financing, investment return calculations, land development economics, real option theory, brokerage principals and practices, and more. We believe a thorough understanding of our clients’ businesses helps foster efficiency, better transaction structuring, reduced risk and more precise transaction execution. Aside from these obvious benefits, this approach inures a more rewarding attorney-client relationship.

 

We believe that our representation is all about our clients, not about us. We recognize our clients invest in us to help them achieve specific goals. Our involvement in their transactions is not to staff up for our own needs, but rather to help our clients direct their transaction towards a successful conclusion as efficiently as we can. 

 

Transaction Structuring and Execution

 

Gromet & Associates prides itself in precise and efficient transaction execution on behalf of our clients. We promote (actually, we insist upon) a close, proactive working relationship with our clients’ principals, senior management, project managers and closing coordinators, starting at the very beginning of each transaction and ending with post-closing follow-up. We believe in a holistic, interdisciplinary approach to representation; we do not believe that a single transaction requires involvement of several partners and associates from several “practice groups”. As a general principal, we believe the fewer attorneys and paralegals involved in a transaction, the better: less cost for the client; simpler communications, nimbleness in addressing unanticipated issues; better accountability.

 

When discussing new projects or acquisitions with firm clients, we make sure we understand the clients' business goals and intended methodology, and further, each client's exit strategy with respect to the property or loan asset in question. We anticipate what subsequent owners, lenders and ultimate users of the target property will need and expect, and help our clients structure transactions accordingly at the front end to facilitate their subsequent finance and disposition transactions. We view our involvement as a part of our clients’ cohesive strategy over the life of a client’s investment in the asset, not just as lawyering a single transaction.

 

A natural part of our service to clients is our advice regarding market context relevant to their transactions. For example, we are not only current on the latest services and products provided by escrow and title companies, and which products are most cost-effective for the client; we also know if the pricing of those services is competitive in the industry. For example, while in some jurisdictions, escrow, title and foreclosure trustee pricing is strictly regulated, in less regulated areas there is often wide variation in pricing. On more than one occasion, the Firm has saved clients escrow and title fees and premiums greater than the entire cost of our entire representation of them in a matter.

 

One of several advanced services we provide to our clients, when appropriate, is transaction structuring. In the majority of real estate transactions, the structure of a sale or financing transaction is addressed through traditional transaction structures and documentation (fee purchase and sale, option, stock purchase, venture formation, mortgage finance, private equity, or any combination of the foregoing). However, sometimes transactions, particularly distressed ones, present unique transaction-related problems and risks for the transaction's participants, and require customized risk-mitigating strategies and approaches. Due to our deep experience and understanding of both the legal aspects and our clients’ real estate business, together with our upfront knowledge of our clients’ specific goals in a transaction, our firm is very proactive in crafting “out of the box” solutions to resolve what initially appeared to be unacceptable risks or insurmountable obstacles in a transaction.

We believe our role is to help our clients make well-informed decisions based upon relevant information, not to make decisions for them. In the course of our representation we stay close to the project and transaction documents we review, and the documents we draft. We make sure our clients understand those provisions which conflict with our clients’ risk profile and special sensitivities (e.g., escrow-period deposit disposition, default characterization, post-default triggers, contractual limitation on remedies, etc.). We also give experience-based, practical advice to our clients; our focus is not only to draft contracts that properly state the rights and remedies of the parties in the event of a contract breach, but which are practical and cost-effective to enforce as well.

 

We also analyze and make sure our clients understand the legal ramifications of legal rights and obligations that survive the closing of their transactions (e.g., effects of releases, waivers, indemnifications, deed restrictions, etc.).

 

Real Estate Acquisitions and Dispositions

 

The core of our practice is representing clients in the acquisition and disposition of real estate assets. The opportunities and risks attendant to the purchase of real estate requires early diligence and guidance, from verifying seller identity, solvency and ownership, to making sure the escrow and title officers are experienced, accommodating and have sufficient legal and senior management support to help solve problems that crop up during escrow. While focused on the issues relevant to purchase execution, we constantly keep in mind our clients’ exit strategy and the paths to that goal (e.g., financing, subdivision, tri-party agreements, off-site easements, utility infrastructure agreements, community facility district formation).

 

On the selling side, intense focus is paid to drafting a sale agreement that can have only two results: a timely closing or a total and immediate disengagement of the parties, allowing our clients the freedom to take its real property asset back to market. This requires precision drafting which does not allow the opposing party to avoid one of the two possible results. As a rule, sellers are (and should be) insistent upon a tight document; ambiguity is the vacilating or disingenuous buyer’s best friend.

 

As a rule, we believe in clear, concise drafting that is as simply stated as possible. While drafted with our clients’ interests in mind, our approach is not to create such an onerous document that opposing counsel is compelled to over-negotiate just to get to a fair result. Rather, we believe in building credibility and trust in dealing with opposing counsel; we are not interested in demonstrating how tough we are; such an approach often does not advance our clients’ interests and often adds significant legal costs to transactions.

 

Property Assembly and Portfolio Acquisitions

 

The assembly of multiple parcels of land for future development on an integrated basis requires special applications in terms of contract structuring and timing, and title insurance sequencing. Over the years, Gromet & Associates has developed significant experience in helping clients assemble land, develop infrastructure strategies, and document on-site and off-site easements, licenses, dedications and consents necessary for optimizing the development entitlement of our clients’ projects. In fact, consideration of these issues is best undertaken at the front end of every acquisition of undeveloped property.

The Firm also handles portfolio acquisitions of disparate properties that have become parts of portfolios owned by banks or private investors. With large portfolios, we help clients having staff capacity to establish in-house procedures for analyzing target loan or REO portfolios, to help them control their costs on certain aspects of due diligence inquiry. 

 

Entitled Project Disposition

 

A natural complement to our representation of clients who assemble land for community development is assisting them in their merchant builder sales. Our firm is extremely pro-active in assisting our clients to prepare their assembled and entitled properties for residential community development. We are very attuned to the certainty that merchant builders seek from our land entitlement clients, both in terms of entitlement status (e.g., tentative map approvals, vested tentative map approvals, LAFCO issues, regulatory permits, etc.), and actual project development documentation (e.g., infrastructure planning, CFD formation, on-site and off-site project development documentation, etc.). We understand how and why these items play an important role in determining the residual land value that often form the basis for entitled project sale pricing, and, during the better part of the real estate cycle, the crafting of revenue and/or profit participation agreements our land entitlement clients procure from merchant homebuilders.

 

Entity & Venture Formation

 

Almost all of the Firm’s clients conduct their real estate and related activities through entities designed to limit liability exposure and facilitate financing. On behalf of our clients, we form operating entities for property acquisition and holding, as well as for asset and property development, brokerage activities and private investment offerings. We form general partnerships, limited partnerships, limited liability companies and tiered entities, as well as single-purpose, bankruptcy remote entities when needed to meet mortgage lender requirements. Our focus with our clients in the partnership and limited liability company arena is to establish a clear articulation of management authority and decision-making methodology, avoiding impasse scenarios, and to clarify and make comprehensible to all parties the limits of general partner and manager fiduciary duty. Our intimate understanding of preferred returns, waterfall allocations, discounted cash flows, IRR hurdles, promotes, the relationship and distinctions between cash flow distributions and tax allocations, and the ramifications of the 704(b) allocation rules, enables us to assist our clients to accurately articulate their internal business arrangements in their organizational documentation.

 

Distressed Transactions

 

Most distressed transactions pose heightened transaction execution risks for clients in several areas, whether they are buyers, sellers, brokers, title insurers, equity sources or secured lenders.

 

For the distressed asset buyer, due diligence review periods can be very short or even non-existent; the quantity and quality of property data is often unreliable or difficult to access; sometimes the sellers are not cooperative or forthcoming with information. The seller of a distressed asset may itself be distressed, and may be considering bankruptcy or a general assignment to creditors, may have tax recapture issues (i.e., mortgage in excess of basis) and/or potential cancellation of indebtedness income (CODI) exposure. Discerning the existence of these factors can help explain behavioral anomalies in a seller and help a client anticipate problems and proactively avoid unintended consequences. Properties which are subject to bankruptcy can have several added layers of issues, both substantive and procedural: court approval for sales; sale approval process; over-bidding, stalking horse bids with break-up fees, and insider cram-downs.

 

At the property level, we help our clients identify and solve specific issues impacting distressed properties: e.g., busted CFD’s, broken infrastructure improvement/reimbursement agreements, etc. Our Firm’s lawyers have substantial expertise in identifying the multitude of risks and issues often imbedded in distressed real property and loan acquisitions; further, due to our experience we know how to structure the acquisition of a single distressed property or loan, or an entire portfolio of real estate assets, and draft documentation that mitigates clients’ risks as buyers of those assets. For example, we have a deep expertise in analyzing lease subordination, attornment and non-disturbance agreements, and are thus able to fully inform our clients about the ramifications of foreclosing on leased properties, and what options are available to alter a disfavored potential outcome. As another example, in projects that rely on shared access easements, we check the lien priorities of all access easements relative to secured mortgage lenders to be sure a foreclosure of any of the properties involved does not cause extinguishment of needed access rights.

 

For the distressed seller, the biggest risk is the delayed closing of a transaction. We take great efforts to be sure our seller clients have sufficient time to complete the sale transaction, without exposing the seller to substantial re-trading risk or closing delays, through drafting that forces a buyer to either exit a transaction cleanly and quickly, or close timely. Another focus of our representation with distressed seller clients is helping them manage their relationships with their lenders, particularly if the property is in late stages of foreclosure. It is important to understand, and manage, the lender’s perspective and attitude as much as possible during a distressed sale, so as to anticipate and avoid problems in the later stages of the transaction.

 

Secured Finance Practice

 

Due to its developer client base, the Firm has expertise in representing borrowers in real estate secured transactions. We routinely write borrower’s legal opinions and assist clients in creating single purpose, bankruptcy remote entities in order meet lender’s organizational requirements. Over the years the Firm’s lender practice has also grown, and the Firm presently has an active practice representing private, secured real estate “niche” lenders. 

 

Leasing

 

Many of our clients acquire, hold and manage improved properties which are leased to tenants. Gromet & Associates has a long history of developing single- and multi-tenant leases, in a variety of formats: full gross leases; modified gross leases with expense stops or base years for allocating costs for common area maintenance expenses; triple net leases and ground leases. Our attorneys are familiar with tenant build-out processes and documentation, whether in the form of a landlord turn-key build-out, a landlord build-out using tenant improvement allowances, or a tenant build-out. We understand the risks and business impacts of the build-out process on the rental stream, lease term and similar matters which figure into the financial aspects of real property. We are also experienced in restaurant leases, retail leasing and other leases that contain revenue participating features. 

 

Brokerage Representation

 

Gromet & Associates’ lawyers act as legal counsel to prominent brokerage houses and are conversant in brokerage representation issues (e.g., dual agency, negligence, procuring cause, licensing, etc.). In addition, the Firms’ senior principal is a licensed California real estate broker, and has formed a California licensed brokerage company (PortFolio Partners, Inc.), whose primary function is not to engage third-party brokerage services, but rather to assist Firm clients in transactions where circumstances warrant involvement of a California licensed broker.

 
 
 
 
 
 
 
 
 
 

© 2014 by Gromet & Associates

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