Commercial Properties can be more complex to navigate as compared to residential properties. It is essential that due care is taken in the sale and purchase processes of the commercial real estate to make sure that your interests remain protected. Partnering with a trusted Commercial Real Estate Lawyer would be a recommended step in ensuring that your legal interests are maintained, and you are aware of all the options involved.
Purchase, sale and lease of the commercial real estate encompass diverse issues like leasing, mortgage financing, tax implications, insurance, portfolio management and cost-sharing. Let’s look at the various activities which need to be done in the sphere of sale, purchase and leasing of commercial properties.
Agreements of Purchase and Sale and Offers
Your Commercial Real Estate Lawyer will assist you by drafting, negotiating and analyzing agreements of sale, purchase and associated offers. They get customized as per the needs of the individual transaction to protect your legal interests.
Latest updates are also included in the agreements as and when needed. The Lawyer will also prepare a preliminary title review for you at the time of deal negotiation before drafting the final offer. The Lawyer will also offer independent legal advice to enable you to minimize your expenses, taxes and liabilities in the transaction.
Acquisitions and Dispositions
Whether you choose to deal with commercial, retail, industrial, mineral and agricultural property, make sure that the Commercial Real Estate Lawyer you select has expertise in the given area. They should do detailed title searches to make you aware of the existing encumbrances on the title such as by-laws, the right of way, easements, site plan control agreements, subdivision agreements, restrictive covenants. Off-title searches are also done which include hydro one, conservation authority, fire department, building department, zoning and much more.
Unpleasant surprises are minimized at closing time if the above searches are performed. It also allows you to make informed decisions.
Purchase from a corporation will involve searches against the corporate status and bankruptcy. Authorisation status for sale should also be confirmed with the vendor corporation. In sale transactions, mortgage lenders coordination, arranging for mortgage discharges, reviewing draft closing documents and coordinating with all parties involved in the transaction are also done.
Title Review, Off-Title Review and Due Diligence
It is recommended to consult a Commercial Real Estate Lawyer before starting negotiations with the vendor to be clear on all property encumbrances. This helps to make sure that the property being purchased has a clear and marketable title. Title review typically includes review of all instruments registered on property title including the right of way agreements, site plan control agreements, subdivision agreements, municipal by-laws, liens, registered leases and development agreements.
Property surveys are reviewed by the lawyer and informed to you through a detailed report. The Lawyer also reviews adjacent property titles to make sure zero existence of Ontario Planning Act contraventions. Detailed off title searches are also done to make sure no outstanding payments exist on tax, water and other utilities.
When a corporate vendor is a party in the purchase transaction, searches are done against the corporation including corporate profile overview, Personal Property and Security Act registration reviews and bankruptcy and insolvency searches. Corporation’s HST registration, active status on the date of sale and local land registry office inquiries are also done by the Commercial Real Estate Lawyer.
In tenancy cases, leases are thoroughly reviewed, and key findings are noted in a detailed summary report and explained to you along with their legal implications for you as a property owner. Estoppel certificates and non-disturbance agreements can also be prepared to secure your legal interests.
Financing and Private Mortgages
Your Commercial Real Estate Lawyer will also assist you in securing and negotiating mortgage and necessary financing options. They will help you negotiate lending documents with the lender’s lawyers, comply with financing requirements and act as escrow agents for borrowers and lenders. They also have established relationships with lenders and can help in securing the necessary financing.
Private mortgage services can also be offered if you are obtaining private financing for your commercial property. The Lawyer will also explain the full legal implications and options for the private mortgage.
Blanket and Collateral Mortgages
Any type of mortgage you prefer, your Commercial Real Estate Lawyer can help you in securing from blanket to collateral mortgages.
Collateral mortgages have different terms as compared to a conventional mortgage, and these will be explained to you by your Commercial Real Estate Lawyer. They will also make sure that the mortgage is suited to your specific needs and fully understood by you before you sign the mortgage agreement documents.
Blanket mortgages include loan facilities which are secured against two or more properties. You may prefer them due to their flexibility and convenience. The Lawyer will also seek to explain the specific review and factors involved in blanket mortgages so you can make an informed decision.
Your Commercial Real Estate Lawyer will also draft and negotiate commercial leases on your behalf which is customized to the requirements of the tenant and landlord for that particular transaction. Lease details and particulars are discussed with you whether it is for industrial, commercial or retail space.
If representing tenants, the Lawyer will make a detailed review of the draft lease of the landlord to ensure nothing untoward is included. Draft comments will be made and discussed with you to understand the priorities and then appropriate actions are taken. Revisions to the lease are done based on this information.
If representing landlords, the Lawyer understands the lease intentions from a landlord and drafts suitable and customized lease agreement. They coordinate with tenant solicitor’s to make appropriate negotiations and make sure a mutually agreeable agreement gets drafted and finalized.
Your Lawyer also negotiates new and unconventional leases like solar rooftop, building and ground leases.
Franchisor and Franchisee Leases
Franchise locations leases are also negotiated and completed by the Commercial Real Estate Lawyer. These leases differ from the commercial leases as they include the right to sublet the premises to the franchisee to occupy as a tenant. Head lease and sublease are also negotiated separately, and both landlord and tenant priorities are taken care of at the time of negotiations.
Advice on Leased out properties is also provided by the Commercial Real Estate Lawyer who makes sure that property management operations are optimized to minimize costs and maximise profits. You can also rent out your commercial property and delegate the property management to have a tension free property investment.
Real Property Aspects of Purchase and Sales of Businesses
Your Commercial Real Estate Lawyer will also help in completing the purchase and sale transactions of businesses. They will draft and negotiate asset sale agreements and share purchase agreements for you in single or multiple property transactions.
They will also make sure that all your property transactions are aligned to your long-term objectives.
You need to secure appropriate title insurance policy for all purchases of the commercial real estate. It is essential to get title insurance for all your commercial properties as they are very different from a simple residential property transaction.
Customized policies are taken as per the type and nature of coverage needed for your specific purchase transaction. You can also benefit from the business relationships which the Commercial Real Estate Lawyer has with various title insurance providers.
Joint Ventures, Limited Partnerships and Co-Tenancy Agreements
For all purchases of property where multiple individuals and corporations are joint owners, many factors are involved. The right vehicle for ownership is chosen based on the needs and situation of the property owners. Based on the duration and nature of the investment, the property ownership model is chosen.
Your Commercial Real Estate Lawyer will start by understanding your intentions in the transaction and then accordingly work to draft the ownership and transaction documents. For longer investment relationships, a limited partnership may be preferred while a co-tenancy agreement is suitable for circumstances where joint venture is not desired.