Blog: Real Estate Legal Updates

The Downtown Sacramento Partnership (DSP) and the Urban Land Institute (ULI) recently convened a Technical Advisory Panel (TAP) of distinguished third-party analysts from around the country to analyze and recommend growth opportunities for downtown Sacramento. The TAP’s recommendations were made public this month. As a member of ULI Sacramento’s Executive Committee, I believe in downtown Sacramento’s potential and the power of the built environment to transform the community. In case you missed it, I wanted to share a few highlights of the TAP’s findings and recommendations with the hope that its vision for downtown Sacramento will inspire us in the commercial real estate sector to embrace the opportunities ahead.

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The classic fable of The Tortoise and the Hare is well-known across mainstream culture. Yet despite the story’s reliable and surprisingly universal thesis, it appears to have become commonplace for investors to look for faster and bigger results in lieu of slow and steady returns. And with recent high rates of return triggered by sustained low interest rates and pent up demand following the Great Recession, the commercial real estate sector seems to be no exception to this hare-like approach. It should therefore come as little surprise that, given high interest rates, increased construction costs, and political turmoil, many commentators on the 2024 commercial real estate market predict negative results for the upcoming year.[1]

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There are not many things in life that are truly “one size fits all.” We certainly don’t take this approach when it comes to our clothes, our TV shows, or our lunches. Yet for some reason, we regularly employ this method in our commercial real estate transactions. Almost daily, I am asked to comment on an AIR or CAR form, usually with the caveat that one of the parties really wants to use the form and “keep it simple.” While simplicity may have its benefits, this is rarely the wisest course of action in a transaction involving multi-million-dollar assets. A custom form will more accurately reflect the parties’ agreement and, in my experience, actually be cheaper and easier for the parties to negotiate.

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Every spring, usually on the first weekend of good weather, I rush to the local nursery and spend what feels like a week’s worth of wages on new plants, soil, fertilizer, and irrigation lines. I can’t wait to get the seedlings in the dirt, connect the water, and watch the home-grown, organic produce flow from Mother Earth based only on my sweat equity. And every summer, usually around the Fourth of July, I face the cruel realization that my green thumb was apparently lost at childbirth.  The return on investment for 12 cherry tomatoes, 6 strawberries and a shriveled zucchini just isn’t there. Not everything goes to plan. 

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Spring is here! We finally have warmer weather, longer days, and the prospect of weekend plans not getting ruined by rain. If you’re anything like me, you were ready for the turn of the season after a very wet winter. What I wasn’t ready for was the inevitable assault on my senses, as pollen has suddenly filled the air and unleashed its annual crusade to dampen the optimism of spring. If I had remembered to start my Flonase and Claritin regime earlier, perhaps I wouldn’t be flying through tissue boxes as I sneeze and cough my way through the day.

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With the turn of the year comes ill-fated resolutions, needed but annoying rain, and a slew of new legislative enactments coming into effect. While commercial real estate is not typically a hotbed for legislative activity, there are a few noteworthy changes that may affect prospective projects, mostly focused on relaxing procedural requirements to incentivize the construction of new housing projects to combat the state’s ongoing housing crisis.

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As a transactional lawyer, I’ve always found a special delight when the occasion arises to use one of my favorite sayings: “The pen is mightier than the sword.”  It provides a certain level of self-importance that transactional attorneys enjoy in relatively few circumstances. But in today’s electronic world, where ballpoint pens may soon join VHS tapes and 8-tracks in the trash can, we’ve had to reassess whether that saying still holds water. If no one handwrites agreements, or almost anything for that matter, where does the power go that was otherwise held by the prestigious pen?  Or (perhaps) more importantly, how can parties execute transaction documents without having to resort to printing and physically signing their documents, and can this be done electronically?

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In protracted contract negotiations, many clients become dismayed when a deal they thought had been agreed in a letter of intent is suddenly the subject of contentious exchanges between the parties and their counsel. The clients may be comfortable with the purchase price or due diligence timelines, but many clients have never considered, let alone negotiated, the various other critical terms in a purchase contract.  These terms are often as, if not more, important, as they will define the scope of the parties’ rights relating to the transaction and exposure for lawsuits after closing. This article is designed to give a primer on the basics of these concepts so that parties may be better prepared when negotiating their purchase contracts at the letter of intent stage.

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“Let’s leave that to the lawyers.”  It’s a familiar refrain that I hear often as contract negotiations drag on between parties.  After the primary deal points in a contract have been agreed upon, many clients believe that the remaining terms can be easily resolved without their involvement.  Unfortunately, this is rarely the case, as what some clients perceive to be boilerplate or “standard” could become critically important if a dispute arises relating to the transaction.

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