Structuring CC&Rs for Mixed Use Projects

Similar documents
Mixed-Use Development Leases: Tailoring Provisions to Address Unique Legal and Ownership Structures

CC&Rs and Easements for Commercial and Mixed-Use Projects

Reciprocal Easement Agreements: Structuring and Amending REAs for Retail and Mixed-Use Project Development

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Commercial Lease Due Diligence in Real Estate Acquisitions: Key Issues and Best Practices

Clearing Title for Defects Due to Easements, Encroachments and Survey/Boundary Disputes

Gross Up Provisions in Commercial Lease Agreements: Guidance for Landlords and Tenants Structuring Terms to Balance Benefits and Mitigate Risks

Retail and Shopping Center Acquisitions: Negotiating the Purchase and Sales Agreement, Conducting Legal Due Diligence

New 2016 ALTA/NSPS Land Title Survey Standards: What Attorneys Need to Know

Structuring Financeable Ground Leases and Leasehold Mortgages

Structuring Landlord Lien Waivers and Collateral Access Agreements: Navigating Competing Interests of Tenant's Lender and Landlord

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: Alan W. Beloff, Senior Counsel, Morgan, Lewis & Bockius, Boston

ALTA/NSPS Land Title Survey Standards: What Real Estate Counsel Need to Know

Clearing Title for Defects Due to Easements, Encroachments and Survey/Boundary Disputes

Structuring Landlord Lien Waivers and Collateral Access Agreements: Navigating Competing Interests of Tenant's Lender and Landlord

Subordination, Non-Disturbance and Attornment Agreements in Commercial Leasing and Real Estate Finance

Presenting a live 90 minute webinar with interactive Q&A. Td Today s faculty features:

ALTA/ACSM Land Title Surveys

Structuring Real Estate Sale-Leasebacks: An Alternative to Mortgage Financing for Owner-Operators and Investors

UCC Foreclosures: Overcoming Obstacles to the Sale, Evaluating Receivership and Bankruptcy Alternatives

Legal Considerations Evaluating and Assessing Land Use Entitlements, Discretionary Approvals, and Other Key Issues

Healthcare REITs: Navigating Regulatory Challenges and Minimizing Liability Risk

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Rooftop Telecom Leasing: Practical Considerations, Key Provisions and Other Legal Considerations

Mixed-Use Development: Structuring Air Rights Condominiums and Other Common Interest Community Regimes

Municipal Infrastructure Funding: Overcoming Legal Challenges with Exactions and Impact Fees

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

New 2016 ALTA/NSPS Land Title Survey Standards: What Attorneys Need to Know

Presenting a live 90-minute webinar with interactive Q&A

Solar Leases: Deal Structures, Key Provisions and Practical Considerations

Carve-Out Transactions: Strategies for Due Diligence and Structuring the Deal

Structuring Complex Easement Agreements in Commercial Real Estate Deals

UCC Battle of the Forms: Confronting Conflicting Terms in Purchase Orders, Invoices and Related Documents

Navigating FASB's New Pushdown Rules for Acquired Entities

Pass-Through Liabilities and Federal Tax Treatment: Resolving Complex Issues

IRC 754: Partnership and Pass-Through Entity Basis Adjustments

IMPORTANT INFORMATION

Mixed-Use Developments: Lessons Learned From Recent Deals Navigating Zoning, Financing, Community Buy-In, and Other Challenges

Basis Adjustments for Partnerships and LLCs: Compliance Challenges

Avoiding "Due on Transfer" Provisions in Land Trusts and Single-Member LLCs

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Midstream Executory Contracts in Bankruptcy After Sabine

Midstream Executory Contracts in Bankruptcy After Sabine

Mixed-Use Development: Structuring Air Rights Condominiums and Other Common Interest Community Regimes

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Real Estate Loan Commitment Letters and Terms Sheets: Negotiating Key Terms

Financing Public-Private Partnerships for Infrastructure Assets

Allocating Environmental Risks and Liabilities

Development Agreements Between Municipalities and Private Parties

Requirements for accepted development and assessment benchmarks for assessable development

LLC Operating Agreements: Minimizing the Impact of a Member's Death, Divorce or Bankruptcy

Allocating Operating Expenses in Commercial Real Estate Leases: Negotiating Strategies for Landlords and Tenants

Hotel Management Agreements: Key Topics and New Frontiers

New Section 168(k) Bonus Depreciation Regulations: Claiming 100% First-Year Depreciation Deduction Under Tax Reform

Lease Enforcement and Remedies: Structuring Key Provisions for Eviction, Self-Help, Injunction, Action for Damages

Navigating the New Lease Accounting Standards for Audit Advisers Preparing Clients for the Transition to the Joint Project Lease Reporting

SECTION 23 PLANNED RESIDENTIAL DEVELOPMENT FOR ELDERLY PERSONS

COST SEGREGATION UNCOVERING HIDDEN CASH FLOW

Remedies Provisions in Commercial Real Estate Sales Contracts Strategies for Buyers and Sellers Negotiating and Enforcing Default Clauses

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

SHEET 1 of 13 RECORDING REQUESTED BY AND WHEN RECORDED, RETURN TO: S&S CONTRACTORS, INC VENTURA BLVD., # 104 WOODLAND HILLS, CA 91364

Section 743(b) Adjustments in Multi-Tier Partnerships: Applying Rev. Rul to Upper- and Lower-Tier Entities

Section 7.22: Multifamily Assisted Housing in AA-30 Residential Zone (MAHZ) [Note: an additional line will be added to the Table in Article 3, 3.1.

a) Tenant shall require its Contractor to provide and maintain the following insurance coverage:

Leveraging Public-Private Partnerships for Real Estate Development: Beyond Bridges and Roads

APPLICATION PROCEDURE

Level III Preliminary and Final Site Plans Development Review Application Portland, Maine Planning and Urban Development Department Planning Division

Recourse and Non-Recourse Debt for Partnerships

Mastering Partnership Minimum Gain Chargeback Provisions for the Tax Professional

Marshall & Swift SwiftEstimator

The Vineyards. The Walden Garden Society Rules and Regulations

Community Titles: By-Laws and Building Management Statements Their drafting and interpretation!

Special Servicers and Defaulted CMBS Loans Restructuring or Foreclosing Distressed Assets While Navigating Regulatory and Contractual Challenges

A checklist of issues to look out for in analyzing office leases

Your Homeowners Association Property Improvement Handbook

IRC Section 743(b) Basis Adjustments: Applying the 754 Election to Distributions of Partnership Property

TENANT DESIGN MANUAL UPDATED OCTOBER 2016

Short-Term Rental Licensing Guide

PD No. 15 Authorized Hearing

PLANNED UNIT DEVELOPMENT & SUBDIVISION STAFF REPORT Date: July 20, 2017

SPECIAL EXCEPTION GUIDELINES *PLEASE READ THESE GUIDELINES BEFORE COMPLETING YOUR APPLICATION*

PLANNED UNIT DEVELOPMENT & SUBDIVISION STAFF REPORT Date: September 15, 2016

CITY OF BIG BEAR LAKE

STATE OF SOUTH CAROLINA ) DECLARATION OF RESTRICTIVE ) COVENANTS FOR CLEMSON DOWNS COUNTY OF PICKENS ) SUBDIVISION AND RELEASE OF ) EASEMENT

Composition of traditional residential corridors.

Salem Township Zoning Ordinance Page 50-1 ARTICLE 50.0: PUD PLANNED UNIT DEVELOPMENT

JOHN ARENA. To: All Developers, Property Owners, and Architects Seeking Zoning Relief or an Amendment to the Zoning Code

FIRST AMENDMENT TO THE CONSOLIDATING MASTER DEED MAPLE FOREST CONDOMINIUMS

Agent Quick Guide REGISTRATION & USE

SITE DEVELOPMENT PLAN REQUIREMENTS CHECKLIST

Condominium Unit Requirements.

TOTTENHAM SECONDARY PLAN

Herriman & Associates, Inc. Website Various service forms mentioned in this letter are available on our website,

Article 6: Planned Unit Developments

Disclosure Schedules in M&A: Seller and Buyer Perspectives on Preparing and Updating Disclosures

ZONING AMENDMENT & SUBDIVISION STAFF REPORT Date: March 1, 2018

THE WHEELER BUILDING SUBDIVISION

LAKE JONATHON FLATS NARRATIVE June 7, 2016 BACKGROUND AND PROJECT OBJECTIVES

City of Reno October 30, 2012 Draft Midtown Zoning Text Amendments 1

Transcription:

Presenting a live 90-minute webinar with interactive Q&A Structuring CC&Rs for Mixed Use Projects Drafting, Analyzing, Interpreting, and Amending CC&R Declarations TUESDAY, FEBRUARY 6, 2018 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Janet L. Bozeman, Principal, Hyatt & Stubblefield, Atlanta David A. Herrigel, Principal, Hyatt & Stubblefield, Atlanta The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.

Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-873-1442 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 2.

Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

6

7

8

9

10

11

12

13

14

15

Structuring CC&Rs for Mixed Use Projects February 6, 2018 Janet L. Bozeman Hyatt & Stubblefield, P.C. 233 Peachtree St. NE, Suite 1200 Atlanta, Georgia 30303 jbozeman@hspclegal.com (404) 659-6600

Understand Project Identity 17

Project Organization Single building with different uses or multiple buildings? Is condominium applicable or appropriate? Condominium act might provide appropriate rights and protections Does act adequately contemplate mixed use without unduly burdening business? Reciprocal easement agreement? Need to create appropriate easements, rights and protections 18

Preliminary matters Evaluate physical arrangement and shared uses Parking Pedestrian access Utilities Building systems Life safety systems (fire suppression, fire escape) Loading docks Trash & recycling collection 19

Preliminary matters Determine plan for maintenance and operation Utilities Cleaning Beautification (flowers, decorations, etc.) Routine maintenance Security Repairs Renovations and alterations 20

A. Identify and Describe Project Components Identify and describe all of the shared project components in a precise manner to help ensure that all necessary easements are created and allocate maintenance responsibility for each component. 21

A. Identify Project Components 1. COMMON AREAS Property owned by association for the common use or benefit of more than one unit 2. SHARED USE AREAS Property or facilities within one or more units for the common use or benefit of more than one unit 3. LIMITED COMMON AREAS Property or facilities for the exclusive use or primary benefit of less than all units 22

23

A. Identify Project Components 1. POTENTIAL COMMON AREAS Parking facilities (including subsurface garages underneath parcels) Driveways or private roads Loading docks Trash & recycling facilities Sidewalks and pedestrian thoroughfares Signage Stormwater runoff and drainage facilities Skywalks Management or security offices Janitorial and maintenance facilities 24

A. Identify Project Components 2. POTENTIAL SHARED USE AREAS Life safety systems (fire suppression, fire escape) Elevators, escalators and stairwells Building systems Building support/structure Utility lines Party walls Foundation Roof 25

A. Identify Project Components 3. POTENTIAL LIMITED COMMON AREAS Elevators that serve only upper floors Utility pipes, lines and ducts that go through one unit to serve another unit Rooftop HVAC or antennae Awnings, signage, balconies Assigned parking 26

B. Create Appropriate Easements or Use Rights Easements will depend upon design and intended uses Describe with specificity the burdened and benefitted properties Specify whether appurtenant (for the benefit of property, not a particular owner) or in gross (for the benefit of a particular person; terminates when person is no longer the property owner) 27

C. Particular Easements 1. CONSTRUCTION, MAINTENANCE AND REPAIR Provide an easement through another owner s unit for the purpose of constructing initial improvements, performing routine maintenance, repairing or reconstructing (after a casualty) the initial improvements and, if appropriate, altering and renovating the initial improvements. 2. SUPPORT AND ENCROACHMENT Provide an exclusive easement to attach improvements to or receive support from another unit. 28

C. Particular Easements 3. LIMITED COMMON AREAS Provide an easement for the purpose of installing, maintaining and using the item. 4. ACCESS EASEMENTS FOR SHARED USE AREAS 5. INTENDED USE Easements over another s property should generally be restricted to the intended use of the item. 6. VIEW EASEMENT Exclusive or limited rights for sight, views, air and ventilation. 29

D. Construction 1. APPROVAL OF PLANS If project components will be constructed by different owners, the design of the different improvements will affect other parcels Is total architectural control appropriate? Approval over only certain aspects of design? Standards for disapproving Approval not unreasonably withheld 30

D. Construction 2. COORDINATION AND COOPERATION May need oversight where initial construction, reconstruction or renovation of existing improvements will impact other units. May need to address hours of construction, staging and storage areas Temporary access, facilities or utilities needed (i.e., cranes over other property) 31

D. Construction 3. CONSTRUCTION STANDARDS Design guidelines o Setbacks o Building envelopes o Building heights o Curb cut locations Good and workmanlike manner using quality materials Good construction and engineering practices 32

E. Affirmative and Negative Covenants 1. PROHIBITED USES OR USES REQUIRING APPROVAL Exclusivity/competition concerns Quality of vendors some debate about what first class means Types of commercial uses prohibit those not compatible with residential Limits on signs, sidewalk sales, etc. Airspace development rights 33

E. Affirmative and Negative Covenants 2. PREFERRED USE RIGHTS Reserved or restricted parking (e.g., bank parking can be used by restaurant at night) Must have procedures to ensure handicapped spaces available for disabled persons o Reserve handicapped spaces only for disabled persons o If selling/assigning handicapped spaces to non-disabled persons, have clawback rights o Provide valet parking 34

E. Affirmative and Negative Covenants 3. MAINTENANCE OBLIGATIONS Generally each owner maintains its own private or exclusive area Obligate someone to maintain common areas and shared use areas (association) Not all components need to be addressed the same 35

E. Affirmative and Negative Covenants 4. ALLOCATE SHARED COSTS Determine a method for allocating costs for shared components among benefitted parties Can be difficult to conceive of what may be fair to all at the outset Build in as much flexibility as possible to change allocations or add/subtract cost categories Allocation should bear some relation to type of shared item, intensity of use and benefit received 36

E. Affirmative and Negative Covenants 4. ALLOCATE SHARED COSTS Consider whether some uses should be charged less/subsidized by other uses (e.g., nonprofits) Consider whether some uses should be charged less because they support or provide needed amenities to residents or retail customers (food vendors, newsstand, convenience store) 37

Common Methods for Allocating Liability for Common Expenses Fixed percentage allocations o Arbitrary allocation (e.g., 50-50 split) Percentage based on land use/load factor in relation to other land uses; assign points or equivalent units o Land points based on parcel size o Points based on linear feet of road frontage o Building points based on square feet of gross floor area within structures o Use points based on land use classification o Combination of the above 38

Common Methods for Allocating Liability for Common Expenses Fluctuating percentage based on value or actual use/intensity of use o Percentage of sales o Quantity of parking spaces used 39

E. Affirmative and Negative Covenants 5. CASUALTY PROVISIONS Obligation to rebuild for critical items Circumstances under which owner does not have to rebuild Time frame during which must be rebuilt Clearing of premises 40

F. Consider Current Trends Make sure restrictions are adequate for current trends Electric vehicle charging stations Drought-resistant landscaping & sprinkler systems Solar panels Modular and refabricated construction Home-based businesses Curbside management Uber/Lyft pickup stations Drones 41

G. Drafting Considerations 1. Leverage of anchors is significant. 2. Strike a balance between sufficient limitations/description of future development to protect rights of pioneer developers without imposing unworkable limitations. 3. Make cost allocations fluid and easily amendable. Do a budget and work backwards to create a methodology that the market will accept. 42

G. Drafting Considerations 4. Don t allow residential to unduly restrict or control commercial operations but give residential reasonable protections to allow peaceful enjoyment of residences. 5. Understand the relationship of the project components and uses. 6. Maintain appropriate developer control. 7. Flexibility, flexibility, flexibility to deal with the unexpected. 43

Questions? 44