Overlooked Provisions when Negotiating Purchase and Sale Contracts

by Mark E. Ellinghouse

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.

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Real Estate Contracts: The Complex and Often Overlooked Indemnity Clause

by Mark E. Ellinghouse

“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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Jacqueline Simonovich in Law360: Transforming Law Firms' Diversity Intent Into Real Progress

by Jacqueline Simonovich and Lindsey Mignano of Smith Shapourian Mignano PC.

In the summer of 2020, we saw a flurry of diversity and inclusion activity at law firms in response to the murder of George Floyd and the general social unrest in this country at that time. Many firms ostensibly renewed their diversity and inclusion initiatives.

While these renewed commitments were well-intentioned, it was hard not to wonder — would all this talk actually translate into action?

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COVID-19 Commercial Tenant Eviction Update

by Mark E. Ellinghouse

As March approaches, we are poised to hit the two-year anniversary of California’s March 4, 2020, State of Emergency Proclamation relating to the COVID-19 health crisis. In the months that followed, we watched federal, state, and local governments adopt myriad laws, rules, emergency orders, proclamations, declarations, ordinances, and mandates, creating a patchwork of rules and regulations for commercial real estate that defied generalization or statewide compliance practices. The market may never look exactly like it did before COVID-19 (note our last article: to-go alcoholic drinks are here to stay!).

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New California Laws Affecting Real Estate in 2022

by Mark E. Ellinghouse

After surviving holiday family dinners, a few-too-many champagne toasts, and a record-breaking snowstorm, this team is ready to turn its sights to a new year and the exciting projects that are in store.  To kick off our 2022 newsletter season (and hopefully in better fashion than the Sacramento Kings), we thought it would be helpful to summarize a few of California’s noteworthy new-for-2022 laws.[1] There aren’t any earth-shattering changes that will require substantial deviation to standard operating procedures,

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The Importance and Dangers of Letters of Intent

by Mark E. Ellinghouse

Despite a global pandemic and a bingo-card full of natural disasters and calamities, the commercial real estate market has been extremely active over the past two years. While there are some signs that activity will be less frenetic in the upcoming year, most commentators project continued growth, development and overall volume. Many of our clients are already eyeing next year’s targets, beginning the negotiation process with the hopes of getting these deals under contract in the first quarter of 2021. 

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Recent Fires Serve as Reminder That Casualty Will Always be a Hot Issue

by Mark E. Ellinghouse

Fires have played a major role in the history of California. Not only have these disasters repeatedly left a trail of devastation through the State’s forests and other natural areas, but recent fires have been noteworthy in their damage to developed areas such as Paradise and South Lake Tahoe. The impacts will be felt for years, as families struggle to rebuild their homes and charred trees litter freeways and hiking trails. These effects are a good reminder to make disaster plans,

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Shauna Correia in the Sacramento Business Journal: If Asked For a Religious Exemption From A Vaccine Mandate, Be An Optimist

In a contributed article for the Sacramento Business Journal, Shauna Correia discusses an extremely challenging issue that many businesses and HR professionals are facing – how to evaluate religious exemption requests from vaccine mandates. The October 8, 2021 article explores two important questions that arise:

What sort of religious belief or religious practice qualifies for a religious exemption?

How do employers know whether a proposed accommodation is reasonable or an undue hardship?

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How New Legislative Policy May Affect COVID-Related Lease Disputes

by Mark E. Ellinghouse

Over the last eighteen months, we have been forced to devote significant resources to interpreting how largely-forgotten legal doctrines apply to real estate contracts in a post-COVID world. These principles, including force majeure, frustration of purpose, and impossibility/impracticability, were generally overlooked in real estate transactions until life-altering global events required their use. Indeed, many of the cases interpreting these doctrines date back to the world wars that dominated the first half of the twentieth century. 

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NY Court of Appeals Decision Highlights Growing Trend of Higher Courts Ruling Against COVID-Related Lease Defenses

by Mark E. Ellinghouse

Since the start of the COVID-19 health crisis, we have been approached by both landlord and tenant clients asking how COVID affects their leasehold obligations. While we have generally encouraged our clients to approach these matters in an honest and amicable manner with a focus on resolution, disputes have arisen between owners and occupiers. Legal resolution does not come quickly, as the legal process tends to delay final adjudication for several years. Some decisions have been rendered in interim proceedings (such as bankruptcies),

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