The Sinreich Group

Attorneys at Law

(212) 317-1131

The Sinreich Group is a New York City based real estate law firm that represents public and private sector clients in connection with the acquisition, development, leasing, financing, repositioning and disposition of real estate throughout the country.

Digging Deeper

Now that fall is upon us and the pace has quickened, we are enjoying the immediacy of meeting our clients’ third quarter leasing goals. Our success in meeting these goals, quarter after quarter, is fueled by a holistic approach to the legal leasing process, to which we referred last month as systemic thinking.

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This month, and for the next few months, we’ll delve into the different “systemic thinking” principles and tools we use to move the legal leasing needle closer and closer to peak performance.  

Look For The Underlying Structure

The first principle of systemic thinking is that there is a common underlying structure that influences behavior and results across similar types of transactions, notwithstanding that the specific circumstances and participants are different. We believe that access to the underlying structure is a powerful way to work smarter, rather than harder, so that desired results can be achieved predictably rather than sporadically.  

For example, it doesn’t matter whether we are representing the institutional owner of an industrial property in New Jersey or an entrepreneurial retail landlord with one power center in California, over the spectrum of thousands of leases, we are always balancing two separate axes of conflict: precision vs. urgency, and accommodation vs. getting it all.

We know that if we let negotiations drift outside the sphere of reasonableness for a complicated entertainment lease in a mixed use building in midtown Manhattan, the transaction will get bogged down the same way it will for a straightforward suburban office lease in Philadelphia. 

The moments of truth that come up in small leases with “mom and pop” tenants also come up when we negotiate anchor leases with Fortune 500 tenants. Our ability to recognize them and respond in the moment enables us to increase the odds of success time after time.    

Partnering With Our Clients 

We use this core concept as a tool to partner with our clients. We help them uncover internal operational structures that get in the way of their leasing goals, such as multiple, overlapping layers of consent, inconsistent or inadequate construction, legal and operational back-up, or those pesky dinosaur form leases.

The Blind Men & The Elephant

The importance of systemic thinking is graphically illustrated by the parable of the blind men and the elephant. Depending on what part of the elephant the blind men feel, it could be a column, a snake or a rug. The same thing goes for the legal process of commercial leasing.

Unless you approach the legal leasing process with an understanding of all the parts and parties, and how they fit together over the long and short term, there’s a good chance you'll get it wrong, with costly ramifications.

The Holistic Imperative

This imperative provides the underpinning for our Black Box strategies that minimize the time, cost and risk of getting leases that withstand the test of time over the finish line. And these strategies apply before, and during, the negotiation process.
 
For example, before we get inside the Black Box, we work with our clients to ensure that the raw ingredients that go into the Black Box, such as the letter of intent and form lease, will facilitate an efficient negotiation, rather than slow it down. Using a form lease that is one-sided and doesn't meaningfully consider the other party’s perspective is not a smart way to expedite negotiations.   
 
When we’re in the Black Box, the first order of business is to develop a more particular understanding of the needs, goals and challenges of everyone involved: our client, the other party, the other attorney and the brokers, construction and operations professionals, all of whom we will be working with at different points in the process.  
 
During the leasing process, we think a lot about what will happen after the lease is signed. We strive to create a lease that will facilitate a positive, long-term landlord/tenant relationship so that the revenue stream for both the landlord and tenant is protected for the duration of the lease term.

Don't Be Fooled By The Snake

This discipline of systemic thinking during lease negotiations means considering issues from all perspectives over the short and long term. Without it, ramifications range from a costly, slow and inefficient negotiation to a derailed lease that never gets signed. In the extreme, a lease might be signed but end up in litigation.
 
One recent example of a signed lease that was the subject of litigation went all the way to the California Supreme Court. The landlord brought suit to challenge the enforceability of a former tenant's remedies. Evidence presented at trial established that the tenant's demand for these remedies was not based on any analysis of what its future damages might be. This failure by the tenant to engage in systemic thinking during the legal leasing process was the basis for the Court’s finding that one of the remedies was an unenforceable penalty.  

The Whole Elephant

In future posts, we’ll continue to illustrate how systemic thinking during lease negotiations creates value for both landlords and tenants.  
 
Your leasing transactions demand the attention of attorneys who won't mistake the elephant for a snake, column or rug.

Treacherous Terrain

These hazy days of summer are anything but quiet in our corner of the real estate market. As we work on retail, office and industrial leases across the country, we’ve recently navigated treacherous terrain in the Red Zone (that point when the leases are just about, but not quite, ready for signature) that I’d like to share with you.

Red Zone Zingers

Our Black Box strategies to prevent these potential deal killers from killing the deal (hyper vigilance, communication and teamwork) have saved the day time after time. Although it’s impossible to prepare in advance for any particular Red Zone zinger, you can be prepared.

Mobilized and On Message

In one recent Red Zone situation, we represented a real estate investment trust, owner of shopping centers throughout the eastern United States, on a lease with a publicly-owned tenant. Throughout the negotiation, the tenant insisted that the landlord take responsibility for how provisions governing the use of existing tenants might be interpreted in years to come. The landlord consistently declined, but agreed to attach the actual provisions for the other tenants as an exhibit to the lease, so there could be no confusion about the actual language.  

We made sure all open issues were resolved well before the end of the calendar quarter during which the lease had to be signed, including this one, or so we thought. The day before the quarterly deadline, the tenant’s attorney overruled the business rep who had agreed to drop this point. Everyone on the landlord team mobilized, was in communication and on message. At the 11th hour, literally, the tenant did an about-face, gave up on this final point and signed the lease. The moral of the story: sometimes you have to stand your ground and keep pushing to get the lease over the finish line.

Communication and Teamwork

In a current Red Zone situation, The Sinreich Group represents a prominent real estate owner on a complicated entertainment lease. As the lease moved into the Red Zone, the landlord’s key business person left the company, and the tenant suddenly insisted that a newly formed entity with no net worth, rather than the credit-worthy entity whose financials the landlord had approved, would sign the lease. A different prospective tenant made an offer to lease the premises, leaving the landlord no choice but to simultaneously pursue it.  
 
Once again, we put our Red Zone strategies to work: working closely with the landlord’s new business person, negotiations proceeded; a limited guaranty to shore up the shell tenant was agreed to; and after disclosing that there was another interested tenant, simultaneous lease negotiations are moving forward. With two active leases in the Red Zone for the same premises, may the best tenant prevail!

Breaking Bad Habits

We recently attended two real estate conferences: the Urban Land Institute Spring Meeting in Philadelphia, and the International Council of Shopping Centers annual RECON show in Las Vegas. Along with thousands of our real estate colleagues, we shared market intel about getting deals done while the getting remains good.

ICSC RECON, Las Vegas

ICSC RECON, Las Vegas

In keeping with this urgency, we're picking up where we left off in last month's post Getting Rid of Dinosaurs about form leases that hinder negotiations. Here are some out-of-the-Black-Box pointers for how to turn form lease relics into 21st century frameworks for lasting landlord/tenant relationships. To do this, you'll need to address three key issues:

Modernize Your Form Lease

First, get rid of provisions that address every one-off landlord/tenant situation your company has ever encountered. For example, how often is a tenant going to be endangered by hazardous materials emanating from adjacent properties? Does any landlord really expect its tenant to wait an infinite amount of time for delivery of its premises? Is it really necessary to protect against a landlord putting an elevator shaft in the middle of your premises?

Second, do away with provisions so one-sided as to be virtually unenforceable. Can either party expect to enforce an indemnity against its own gross negligence? What sense does it make to insist on harsh liquidated damages provisions when actual damages are not anticipated or even considered? In a recent California Supreme Court case, the court struck down a standard penalty in a national retailer's form lease because the harm anticipated during the lease negotiation bore no relationship to the penalty.

Keep It Simple

Third, keep it simple. Although it is tempting for attorneys to elaborate, incorporating every conceivable nuance into every lease provision bogs down negotiations and often creates ambiguity rather than certainty. Is it really necessary to require a landlord to deliver a certificate of occupancy for the premises when landlord's work is complete AND there is written evidence that landlord's construction obligations have passed governmental inspections?

Break That Bad Habit

I can only imagine the money and time spent by countless landlords and tenants that have labored (and likely will continue to labor) over these and other similarly non-essential provisions in form leases used year after year.

Getting Rid of Dinosaurs

As we move with our clients into one of the busiest times of the year, we’ve noticed that the intensity with which we drive ourselves to produce extraordinary results often gets in the way of taking a step back to evaluate whether we’re working smarter, or just harder.  

So we thought this would be a good time to share one of our Moments of Truth strategies for working smarter to minimize the time, cost and risk of getting commercial leases over the finish line.

Each of the ingredients that go into the Black Box of the legal leasing process: the landlord and tenant teams, the attorneys, the letter of intent and the form lease has a profound impact on the timeliness, costliness and riskiness of the process.

Don’t Let Dinosaur Forms Derail Your Leases

While the attorneys and principals are carefully selected and letters of intent are carefully scrutinized before they get into the Black Box, what gets carelessly tossed in is the form lease, which is often a decades-old repository for every leasing issue with which the party generating it ever dealt.  
 
Both landlord and tenant suffer as a result. It doesn’t matter whether you’re the 800 pound gorilla who gets to impose its form lease on the transaction (unless the other party signs it without reading it) or the 90 pound weakling on the receiving end. Both parties will spend countless hours and dollars to craft a landlord/tenant framework that reflects the deal to which they agreed. No wonder so many leases take too long, cost too much or get derailed along the way.
 
A recent example of a thoughtlessly used form lease involved a ground lease for the development of a fast food restaurant in the parking lot of a shopping center. The landlord attempted to use a form lease created for leasing existing space to small retail tenants. The tenant responded with its equally inappropriate form lease. We were called in to resolve the battle of the forms, and did so by creating a lease both parties could embrace. 

Getting Ahead of the Black Box

In addition to solving this problem on a case by case basis inside the Black Box, we’ve been working with our clients outside the Black Box, so that the threat of a dinosaur form lease is eliminated.
 
To do this, we’ve created a methodology to update and streamline form lease relics into 21st century frameworks for lasting landlord/tenant relationships.  
 
It’s an all-hands-on-deck process. Input and buy-in from legal, leasing, operations and construction are essential. When all is said and done, it’s a great way to create value both inside and outside the Black Box.  

Tech Tidbits to Chew On…

At the recent CRE Tech Showcase sponsored by the International Council of Shopping Centers (ICSC), we learned about an exciting array of tech solutions designed to optimize how we operate, convey, lease, and finance real estate.

These are some salient tidbits about the companies and products that captivated our attention.

MetaProp

MetaProp is a CRE Tech Accelerator. It connects real estate professionals aware of the pain points with techies who can create solutions. MetaProp then helps the resulting start ups get their products to market with financial and other support, including introductions to likely customers. Its 2015 NYC Accelerator class included RadiatorLabs, whose patented technology can reduce heating costs by 30%, and Notion, a wireless home monitoring and security solution.

Floored

According to Floored, its suite of 3D real estate products are virtual reality tools that personalize the process of buying, leasing, and developing real estate. Much like playing a video game, prospective buyers and tenants can visually transform raw space into the finished product, and enjoy an experience much more compelling than looking at 2D (flat) floor plans. The Floored experience contributed to the recent decision by Italian retailer Zenga to locate its New York City flagship store at the Crown building on Fifth Avenue. 

Ten-X

Ten-X, formerly known as Auction, is an online platform for buying and selling commercial and residential property. The entire process, from due diligence to closing, has been standardized and streamlined, eliminating the interminable delays of the traditional buy and sell process. With aspirations of becoming the NASDAQ of real estate, Ten-X has over $8.5B worth of transactions under its digital belt.

MotionLoft

MotionLoft gathers real time indoor and outdoor traffic data for owners, tenants, and cities and transforms it into actionable "intell" about who is at a property, how they got there, patterns of movement, length of stay, and next destination. The data is aggregated to address privacy concerns. MotionLoft has counted over 2.5B people in 50 markets across 3 countries.

Property Capsule

Property Capsule, whose founder and CEO created his first tech start up at the age of 13, enables property owners to centralize, automate, and publish real time information across multiple platforms. Websites, marketing brochures, email blasts, and property files can be simultaneously updated with a single tap. Property Capsule recently won the ICSC Net Operating Income award, for saving a customer nearly $1M in one year.

The CRE Tech Explosion

Please join me and the International Council of Shopping Centers for our first Commercial Real Estate Tech Showcase on April 6th at ICSC headquarters in New York City. This not-to-be missed breakfast meeting will get you up to speed on the technology boom that is disrupting the real estate industry.

Technology startups focused on commercial real estate are changing the way real estate is offered, sold, leased, financed and operated. You’ll hear from the founders, CEO’s and thought leaders of the CRE technology startups that are leading the way. Join us for the inside scoop on how you can gain a competitive advantage by taking advantage of what these companies have to offer. Don’t be left behind!

Moderator   

Alex Markson, President & CEO, Property Capsule 

Speakers  

Aaron Block, Co-Founder & Managing Director, MetaProp
David Eisenberg, Founder & CEO, Floored
Chris Garrison, Founder, Motionloft
Yan Kharmish, Managing Director, Ten-X
Luke Stotler, Chief Experience Officer, Property Capsule

Wednesday, April 6, 2016
8:00 - 10:30 am
1221 Avenue of the Americas, 41st Floor, NYC  

For more information and to register: click here.

Hitting the Curve Ball

As the 2016 presidential race picks up steam, we are moving full speed ahead to make sure our clients meet their first quarter leasing goals. We love the quickening pace and thought this would be a great time to share some of our Moments of Truth strategies for minimizing the time, cost and risk of getting commercial leases over the finish line. 

Today we explore curve balls, our term to describe situations that arise without warning in the Black Box of the legal leasing process. Depending on how they’re managed, these can accelerate, delay or kill the deal. 

Don't Let Curve Balls Derail Your Leases

Although it’s not possible to prepare ahead of time for curve balls, we’ve figured out how to be ready when they come to light, so the deal accelerates rather than slows down or dies.

Here are some examples of recent curve balls that threatened leases just as we were finalizing them: a pet store lease my client, the landlord, realized was not permitted in the shopping center pursuant to the terms of an existing anchor lease; a restaurant lease for a franchisee/tenant who had not “remembered” to provide the landlord with the franchisor’s lease requirements; a health club lease for a tenant whose water/sewer requirements could be restricted by an impending sewer moratorium in the local jurisdiction.

Hitting Them Out of the Park

Ever vigilant, we saw these curve balls materialize, and reached into our handy-dandy strategy toolkit, mobilizing a collective effort to move the lease over the finish line.

Here’s how we did it:   

Step 1. We worked very closely with our client to devise and execute a winning plan of action.

Step 2. We took full advantage of the good working relationships we developed with the attorney and principal on the other side, and made sure everyone was focused and in action.

Step 3. We kept everyone informed about the nuances and tenor of the negotiations as we made progress.

Step 4. We never lost sight of the fact that time kills deals, no matter where we are in the process.

A National Perspective

As we enthusiastically move into 2016, our mood reflects the collective optimism enjoyed by many in the real estate industry. This opening quote from Emerging Trends in Real Estate 2016, recently co-published by the Urban Land Institute and PricewaterhouseCoopers, captures the spirit beautifully: 

The next 24 months look doggone good for real estate.

Here is a brief overview of what our Emerging Trends colleagues are predicting for the coming year.

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18-Hour Cities Will Continue Their Ascent

Austin, Portland, Nashville, Charlotte and a handful of other so-called “18-hour cities” are the markets on which to focus for 2016. A lower cost of living, coupled with an urban vibe and hip amenities, translate into a stronger growth potential for these markets than the 24-hour gateway cities such as New York and Los Angeles which led the post-financial crisis real estate recovery. 

Work Environments Are Up For Grabs

As strengthening employment numbers buoy the office sector in most metro areas, the “re-thinking” of what constitutes an office will continue. Space per occupant, amenities, function and design are all in play. Co-working spaces will continue to attract even greater numbers of entrepreneurs, “knowledge” and “gig” workers in key markets throughout the country.

Middle Income Housing Is The Way To Go

The biggest opportunity in the housing sector will be providing affordable housing for the “excluded middle” of American households. The upper end is saturated with product; the heavily subsidized low end is complicated, low-margin and politicized. Those who can satisfy the needs of millions of middle income households for mid to higher density housing in both suburban and urban locations will hit the bull’s eye.

Plan Your Parking For Change

Emblematic of the parking planning conundrum is that Yankee Stadium’s 50,000 seats are served by only 9,000 parking spaces, but less than half of those spaces are typically used. Given the advent of driverless cars, the shift toward walkability and mass transit oriented development, and the steep decline in drivers’ licenses among Gen Y’ers, conventional parking ratios need to be re-evaluated. New developments would be well served by temporary parking facilities that can be transitioned to other uses over time.  

Up in the Air

As the leaves swirl around us and our pace quickens, year-end goals come into sharper focus and I marvel at how we keep so many balls in the air. Speaking of what’s up in the air, there is a rapidly-emerging, technologically-enabled species of airborne vehicles that some have referred to as the epicenter of a revolution, and that everyone in the real estate industry would be well served to get up to speed on.  

I am referring to unmanned aircraft systems, or drones, which range from toys to tools of industry and war, and are poised to reshape how things in the real estate industry get done. Tasks such as property and construction inspections, evaluation of emergencies and other dangerous situations, and deliveries of merchandise, supplies and construction materials are all about to become safer and more efficient as a result.  

To illustrate the potential for widespread commercial drone usage, consider that Walmart, the largest brick and mortar retailer in the world, recently applied to federal regulators for permission to test drones so that it can warehouse, transport and deliver goods more efficiently. Amazon, which recently opened its first brick and mortar bookstore in Seattle, has been testing commercial drone usage since 2013 and has one of the 2000+ federal permits issued since 2012.

The real estate-related accommodations that Walmart and others will require as commercial drone usage becomes widespread will create significant competitive advantages for those who are positioned to benefit from them. Issues to be addressed include insurance coverage, safety and security concerns, rights to privacy, and physical requirements such as roofs that can support vertipads (landing areas for drones) and building dimensions that can accommodate interior drone flights.    

For those of us creating the 2020 lease, widespread usage of drones by landlords and tenants alike is just one of the emerging realities we are addressing so that our clients can own, lease, and operate properties that evolve along with the markets they serve.    

Seize the Moment


Fall, the season when things speed up, is upon us. Our clients are focused on year-end deadlines and we’re focused on meeting those deadlines.  

Given the pressure most of us are under to wrap things up by year’s end, I thought this would be a good time to share some of my strategies for making sure that what happens in the Black Box of the legal leasing process doesn’t hold things up.

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Moments of Truth

As we make our way through the Black Box, there are pivotal points when lease negotiations can stall, fall apart or move full speed ahead, depending on how adeptly Black Box maneuvers are handled. I refer to these pivotal points as Moments of Truth and I have a variety of strategies for managing them.

Setting the Tone

The first Moment of Truth that comes up in every transaction is Setting the Tone. This happens early in the Black Box process, and, for better or worse, can color the balance of the negotiation.   

If the tone set is unproductive or intransigent, the lease in the Black Box will be at risk. If that happens it’s essential that one or both attorneys (or their clients) recognize that a re-set is necessary.

Re-Set If Necessary

For example, in a recent lease transaction between a large public REIT and a national retailer, the parties exchanged lease drafts that bore little resemblance to the deal agreed to by their leasing representatives, thus setting the tone for a tedious, unproductive negotiation. Luckily the REIT recognized the need for a re-set and brought me in to do just that. I revised the tenant’s lease draft to reflect the agreed-upon deal, which enabled the negotiation to move productively toward a final lease.
 
In another lease negotiation that required a re-set, I represented the owner of a suburban office building where a small tenant hired a large, prestigious law firm to handle its lease negotiation. Its attorney marked up the landlord’s form lease as if the small firm was an anchor tenant negotiating its headquarters lease.  
 
This time, I recognized that the tenant’s attorney was tone-deaf and enlisted my client, the building owner, to re-set the tone with her counterpart, the tenant’s president. After that, we were down to just a handful of issues rather than the exhaustive re-draft that had been looming.

Accelerate vs Stall

Over the coming months, I will share my strategies for handling other Moments of Truth so that negotiations accelerate rather than stall at pivotal points. 

In the Weed(s)

As we continue to focus on the 2020 lease (see Envisioning the 2020 Lease), we have realized that there is a whole new category of uses that some commercial landlords and tenants are engaging in, but that no commercial lease we have ever seen contemplates or permits.  

Those uses are the growth, distribution and retail sale of marijuana.  

An Emerging Opportunity

Thus, apropos of our focus on crafting leases that withstand the test of time and meet the evolving needs of commercial landlords and tenants, we began to consider what a commercial lease for a marijuana-related use should look like.      
 
Our research quickly brought us to the threshold question of whether it is “legal” to lease commercial property for one or more marijuana-related purposes. Here's what we learned.

Federal vs State Law

Although a number of states have legalized marijuana for medical and in some cases recreational purposes, federal law still classifies such activities as a criminal offense. In addition to prohibitions on the cultivation, sale and possession of marijuana, federal law forbids a wide range of related activities including knowingly leasing, renting, maintaining, managing or controlling a place where marijuana is manufactured or sold, and facilitating financial transactions involving funds derived from manufacturing or selling marijuana.

The Department of Justice has acknowledged that enforcement of these federal laws is not a high priority when marijuana-related activities comply with state laws if those state laws guard against threats to public safety, such as the sale of marijuana to minors. However, the Department of Justice has made it clear that there is no assurance against enforcement.  

In addition, civil suits for damages, injunctions and other remedies based on federal law are beginning to make their way through the courts, including a Colorado case charging a multitude of defendants with violation of federal racketeering laws for leasing, renovating and financing a commercial marijuana dispensary. 

Caution Advised

Once we got into the weeds (pun intended) on the legality of marijuana-related property uses, it became clear to us that if you are leasing, renovating or financing property for the cultivation, distribution or use of marijuana you are violating federal law and could be subject to criminal enforcement and civil damages, notwithstanding compliance with state law. And this doesn't just apply to the landlord and tenant; it applies to the attorneys, accountants, contractors, brokers and lenders as well.

Thus, until there is a clear-cut resolution to the dichotomy between increasingly common state laws permitting marijuana cultivation, distribution and use and well-established federal law prohibiting these activities, we will be advising our clients to proceed with extreme caution before they pursue the potential value creation opportunities of this market trend.

So much for being flexible, at least in this case. 

Envisioning the 2020 Lease

As time marches on, the inevitability of change is a constant reality for all of us in the real estate industry. In past blog posts, including our recent July 2015 Game Changers issue, we've highlighted how the built environment is evolving in response to changing demographics, technology, sustainability and a whole host of other factors.  

For every asset type, from residential to industrial, value is inextricably linked to staying relevant. We believe that the lease — which governs how tenant-occupied, income-producing property is used, operated, maintained and renovated — significantly influences the rate at which the underlying property can evolve and stay relevant, or not. 

Envisioning the 2020 Lease

As a result, we envision that the ideal lease of 2020 is one that anticipates, encourages and facilitates changes over the lease term that will optimize the value of the subject property in ways that traditional lease structures do not.  

Getting to this ideal lease will be tricky. Most efforts to step away from traditional lease structures are met with great resistance and those traditional structures often incorporate a delicate and hard-fought balance between control and certainty on one hand, and flexibility and innovation on the other.  

Energy Aligned Green Lease

However, there is a precedent for advancing into new leasehold territory in order to facilitate innovation and value creation that I believe holds the key to developing the ideal 2020 lease. It is often referred to as an Energy Aligned Green Lease.
 
The Energy Aligned Green Lease emerged from the realization that traditional lease structures disincentivize landlords from making energy efficiency improvements to their properties. To correct this, a New York City task force of real estate professionals was convened by Mayor Bloomberg as part of New York City’s PlaNYC. The fruit of their efforts, a provision that requires the tenant to contribute to the costs of future qualifying energy efficiency improvements at a rate that makes it financially palatable for the landlord to make these improvements, is the crux of an Energy Aligned Green Lease.  
 
The details governing this requirement on the tenant's part coalesce into a significant departure from a traditional lease, whether it be a triple net, gross or modified gross lease; and in the details, lie the differences that make the difference between inaction on the landlord's part and taking action to improve the property and thus add value. 

Future-Proof Your Leases Now

For sure, challenges still abound, including the challenge of getting landlords, tenants and their attorneys to incorporate this and other "new" structures into their leases.  

As the pace of change accelerates, the need for building greater flexibility into leases will increase. I believe the Energy Aligned Green Lease is a potent example of a 2020 approach to leasing that incorporates the flexibility necessary to facilitate asset value optimization.

Now we just have to use it.

Game Changers

Although real estate industry professionals have been notoriously slow in adapting to technological innovation, newly emerging technologies are creating compelling opportunities for value creation that can't be ignored.  

Here are a few examples:   

Hard Rock Hotel, Palm Springs

Hard Rock Hotel, Palm Springs

A New Way to Source Debt and Equity

For starters, crowdfunding technology platforms now enable real estate owners to raise money from individual investors that they did not have access to in the past. Likewise, new investment opportunities, such as the financing of one of the new World Trade Center towers in New York City and the refinancing of the Hard Rock Hotel in Palm Springs, are now available to those investors, who in the past would not have had access to these opportunities.

Crowdfunding investors pumped $1 billion into the US real estate market in 2014 and it is estimated that by the end of 2015 that number will be $2.5 billion, with investments starting as low as $100.   

Hospitality and the Sharing Economy

Another technology-enabled innovation is Airbnb, an online platform that is revolutionizing where people stay when they travel. 500,000 or so Airbnb hosts have made their homes and other non-hospitality properties available to travelers. In New York City alone, 400,000 travelers chose Airbnb over a hotel during 2012 - 2013. In addition to displacing hotels, Airbnb is bringing tourist populations to residential areas outside traditional tourist locations, with serious implications for residential, retail and hospitality real estate.

Project Management In the Digital Age

Global online marketplaces now connect real estate owners to building professionals. These marketplaces enable professionals, ranging from land planners to plumbers, to showcase their work, provide references, get tips on prospective projects and respond to solicitations for proposals, all online. Likewise, owners can publicize upcoming projects, obtain and level multiple bids, check references and hire the professionals they need with the flip of a few switches. Honest Buildings, one of these online marketplaces, has real time information about 35,000 building service professionals and its matchmaking services have thus far resulted in $600 million of done digital deals.

Stay tuned as these and other emerging and evolving technologies increasingly separate future winners from the less fortunate in the real estate industry.

The Conference Round-Up

Exuberant is the word I would use to capture the mood on the recent real estate conference circuit that took me from New York to Houston for the Urban Land Institute Spring Meeting and then to Las Vegas for the International Council of Shopping Centers’ annual RECon convention. The reasons for this optimism are straightforward: increased transactional activity, occupancy levels, rental rates and asset valuations.

The legal lease negotiation process

The legal lease negotiation process

Keeping the inner workings of the black box — the little understood and often dreaded legal process of commercial leasing — top of mind (see our recent Black Box series of blog posts), here are some interesting takeaways from my conversations with some of the thousands of global real estate leaders that attended each conference.

Precision vs Urgency

Harkening back to our conviction that in negotiating a commercial lease, the urgency mandate must ultimately trump the desire for precision insurance, almost everyone I spoke to at each of the conferences complained about the time it takes to get a lease over the finish line and the painful opportunity costs of long, drawn out legal lease negotiations.
 
The CEO of a publicly traded landlord shared two strategies that his company is resorting to in order to reduce the time it takes to complete lease negotiations. First, they are negotiating multiple leases (with the same tenant) at one time whenever they can. Second, they are short-circuiting the entire lease negotiation by agreeing, almost sight unseen, to accept the last lease a prospective tenant negotiated with a different landlord.

Getting It All vs Accommodating the Other Side

The willingness to be flexible (a buzzword for accommodating the other side) on the part of both landlords and tenants came up often in conversations with office, industrial and retail professionals. This reflects two trends that were evident at both conferences.
 
The first is the eagerness to make hay while the sun shines. While practically everyone in the real estate industry is enjoying the uptick in transactional activity, none of us has forgotten the dark days of the recent great recession.
 
The second is that flexibility is being demanded of the actual real estate product itself. To stave off obsolescence, office, retail and industrial properties are evolving to meet the changing needs of tenants/occupants. Examples include former Kmarts that are now urgent care centers and office buildings that are being designed to accommodate coworking spaces, such as those operated by We Work, said to be the fastest growing office tenant in the US.

Managing the Red Zone

Remembrance of things past, including the busted deals and lost opportunities that result from carelessness in the Red Zone (that point in time when the lease is just about ready to be finalized), has not yielded any improvements in red zone management that were evident at either conference.
 
In fact, I spoke with a national tenant who expressed significant frustration because a key lease transaction was held up in the red zone as a result of the landlord’s inability to locate their ground lease site on the shopping center site plan. I kid you not!

The Sinreich Group can help your company get its leasing transactions over the finish line quickly and cost-effectively. Call us today, you can’t afford not to.

 

The 360 Lease Review

In our recent Black Box Series of posts, we exposed what the legal process of commercial leasing is: a balancing act along two intersecting axes of conflict that ultimately results in a finalized lease. Understanding what goes on in the black box is just the beginning when it comes to creating a world-class process for getting leasing transactions done as quickly and cost-effectively as possible, a goal all of our clients share.   
 
Unfortunately most real estate professionals don’t have a methodology for measuring the legal leasing process. Although they all want it done with greater speed and less cost, given the reality that “if you don’t measure it, you can't manage it,” most commercial landlords and tenants find it frustratingly difficult to improve.  

360 Lease Review

Going beyond our role as leasing attorneys, we saw an opportunity to partner with our clients by tackling this issue. The result is our 360 Lease Review, an out-of-the-box methodology for quantitatively (and qualitatively) evaluating the legal process of commercial leasing before and after every leasing transaction, so the process can be meaningfully and continuously improved.

Here’s a look at how we developed the 360 Lease Review.   

A Tool For Continuous Improvement

Essentially the 360 Lease Review is a business improvement tool designed to be consistently applied to the business of commercial leasing in order to continuously improve it.  
 
In developing the 360 Lease Review, the first step was untangling the legal leasing process. We broke the process open into a series of conflicting and interlocking factors that we described in our recent Black Box Series.

Next we identified the raw materials that go into the black box, including such things as the letter of intent, the form lease, and ongoing client support, and we developed a methodology for scoring each ingredient and how it impacts each performance factor.  

For example, a letter of intent that accurately covers 90% of the issues that are important to the transaction will positively impact black box performance in three very important ways: first, it will improve performance on the desire to get it all vs need to accommodate axis; second, it will accelerate the process, contributing to a high urgency mandate score; and third, it will facilitate a greater level of accuracy in the final document, contributing to a high precision insurance score.  

The resulting 360 Lease Review for each lease is a series of these and other scores that are weighted in terms of importance, as well as a narrative evaluation, that roll up into a final score that corresponds to how quick and cost-effective the legal leasing process was for that lease.  

The scores from each lease review are also quantitative data points that can be compared from lease to lease to identify positive and negative trends, thus enabling real estate professionals to diagnose what parts of the transformation process need to be fixed and which raw materials need to be enhanced in order to consistently improve their legal leasing process until it is second to none.    

Stay tuned for a deeper dive into each of these steps.

Managing in the Red Zone

Our black box series on the legal leasing process concludes this month with part three of our secret sauce for managing what goes on during that often-dreaded and little-understood process.

Close But Yet So Far

This month we bring our focus to the red zone: that point in the negotiations where just about all the issues have been resolved and the lease is almost in final form. Close to the goal line, but not quite there yet.  

Just as a questionable call in the red zone had disastrous consequences for the Seattle Seahawks in this year's Super Bowl, poor management of the legal leasing process when the lease is just about finalized can also have radical implications.

When lease negotiations reach the red zone, I rely on a heightened level of vigilance to make sure the lease makes it to the goal line and gets signed. I know that if I let down my guard or take my eye off the ball, what looks like a win can easily turn into a loss.

Pivot, Turn and Stay Flexible

Here are some examples of what can and has happened in the red zone: the tenant is a franchisee and “remembers” that the landlord needs to enter into an agreement giving the franchisor rights under the lease that could derail the deal; the bank issuing the letter of credit that will serve as a security deposit finally produces a draft that the landlord won't accept; the local jurisdiction issues restrictions that could have serious implications for the tenant’s permitted use. Time for everyone to mobilize to bring the lease into the end zone.

Strategies to Get Across the Goal Line

Here are the strategies that we rely on to get there. The first strategy is teamwork: we take full advantage of the good working relationship we’ve developed with the attorney and principal on the other side and make sure everyone is focused and in action. The second strategy is coaching: we work very closely with our client to devise and execute a winning plan of action. The third strategy is communication: we make sure everyone is informed about the nuances and tenor of the negotiations as we make our way forward. The fourth strategy is speed: we never lose sight of the fact that time kills deals, especially when they’re in the red zone.    

 

Maneuvering in the Box

As leasing traction continues to accelerate, our black box series on the legal process of commercial leasing continues with part two of our secret sauce for managing what goes on during that often-dreaded and little-understood process.

Last month we focused on the precision vs urgency axis and how we balance the need for precision insurance against the reality that time kills deals.

The legal lease negotiation process

The legal lease negotiation process

This month our focus shifts to managing the simultaneous conflict on the other axis between each party’s desire to get it all and the need to accommodate the other side so that a meeting of the minds can be achieved.

The Zone of Reasonableness

In order to successfully traverse this axis, we start by scoping out the boundaries within which meaningful negotiations can take place, a zone of reasonableness, so to speak.  
 
Negotiating outside the zone is largely a waste of time and money. For example, it would not make sense for a 2,000 square foot tenant to try to modify the condemnation clause in a New York City Class A office building lease, but it could make sense in the case of a 300,000 square foot tenant.   

The size of the zone of reasonableness, which can range from a pinhole (one or both parties insist on getting it all) to an ocean (both parties are willing to accommodate), will be based on the relative bargaining power of the parties and influenced by a variety of other factors including timing, personalities and relationships.

Forging the Win-Win Deal 

Once I understand the boundaries of the zone, no matter how lopsided the parties’ relative bargaining power is or which party I represent, I can operate from a position of strength to guide the negotiation to a point on this axis that represents a meeting of the minds.  
 
In my opinion, and it doesn’t matter whether I represent the 900 pound gorilla or the 90 pound weakling, that point should represent a ‘win-win’ for both parties. After all, the success of the legal leasing process is not just getting to the finish line, it’s also about forging a viable long-term relationship between landlord and tenant.

The Need to Accommodate

As I noted in December, at a certain point in every transaction, the need to accommodate the other side trumps the desire to get it all. Managing this tension with the parties’ long- and short-term goals in mind is another part of our strategy for creating value as we toil away in the black box.   
 
Stay tuned next month as we pull the axes together, and call us today to negotiate your leases. You can’t afford not to.

A Deeper Dive

Last month we opened up the black box that constitutes the legal process of commercial leasing and received an overwhelmingly positive response from many of the landlords, tenants, brokers and lenders whose real estate fortunes are tied to the commercial leasing process.  

This month, we continue the black box series with part one of an exposé on our secret sauce for managing what goes on in there.

The legal lease negotiation process

The legal lease negotiation process

Precision vs Urgency

Our focus today is on the precision vs urgency axis: the conflict between the need to get everything right and the reality that time kills deals. To effectively traverse this axis, the starting point for me with every new client is to earn the right to move fast. By demonstrating command over the details and nuances of the transaction at hand in a way that transcends that particular transaction, I make sure that my client gains a strong level of comfort that they made the right choice of attorneys.  
 
Simultaneously I find out where my client’s focal point is on the urgency/precision continuum generally and specifically for the lease we are working on.   
 
Some of my clients read every word of every document they sign and for them, precision down to crossing every “t” and dotting every “i” is crucial. I have other clients who take more of a big picture approach. In fact one said to me just yesterday: “We are not interested in crossing the ten “t’s” in every sentence, eight out of ten will do. We are much more interested in getting the deal DONE. But of course,” he added, “we need to protect ourselves and make sure the document accurately reflects the deal.”

Achieving Precision

As this client articulated, no matter where a client stands on the precision vs urgency axis, every client needs to know they have an acceptable amount of precision insurance. And no lawyer worth their salt would ever finalize a document they knew to be sloppy, wrong or ambiguous.
 
During lease negotiations, I actively manage two aspects of the precision goal. The first is expressing each concept in the lease with clarity so someone else can understand it, both today and ten years from now. The second is coherence: making sure all the provisions work together. For example, if the landlord's work can’t be performed until the tenant’s plans are complete, other provisions of the lease that need to come together to trigger the all-important obligation to commence rent payments have to be coordinated accordingly.

Respecting The Urgency Mandate

As I noted last month, at a certain point in every transaction, urgency trumps precision. Managing this tension with the endgame in sight is one way we make sure the process doesn’t jeopardize the outcome. And that’s part of our strategy for creating value as we toil away in the black box.  
 
Next month we’ll take a deeper dive into the second axis of conflict: the desire to get it all vs the need to accommodate the other side.

 

Opening the Black Box

Last week I spent two amazing days with over nine thousand commercial landlords, tenants, brokers and lenders at the International Council of Shopping Centers (ICSC) New York Deal Making Conference here in New York City. There are not many other gatherings of this size (or any size really) where practically everyone's financial well-being is inextricably linked to the occasionally welcomed, but most often dreaded, legal process of negotiating a commercial lease.  

The legal lease negotiation process

The legal lease negotiation process

At the conference, elements of this process were discussed repeatedly and those conversations confirmed my suspicion that for many professionals in the real estate industry, the legal leasing process is a black box. Once the brokers and principals agree to a few salient business terms, the lease disappears into that black box and there is little understanding of exactly what the process is, let alone how to successfully manage it.
 
So in this post I am going to open up that black box — the legal process of commercial leasing — and in the next two posts I am going to share my secret sauce for managing it.  

Opening the Black Box

The legal process of commercial leasing can, at its most basic level, be summed up by imagining two intersecting axes of conflict that the attorneys need to traverse as they move toward the finish line (see illustration above).

The first axis represents the conflict between precision and urgency. The need for precision can be likened to the need for adequate insurance. The hope is that you'll never need to depend on it, but boy if you do, having it is essential.  

The conflicting tension at the other end of this axis is the urgency to get the lease signed. This stems from the reality that time kills deals and the longer your lease lingers in the black box, the more likely it is that the other party will be distracted by a cute new puppy or the shiny penny over there that will trump the lease in the box.

The second axis represents the conflict between the desire to get it all, or go for the jugular, and the need to accommodate the other side and pursue win-win solutions.  

At a certain point in every transaction, urgency trumps precision and the need to accommodate trumps the desire to get it all. But there are an infinite number of paths to that all-important point and figuring out the most direct one is often tricky. In addition, knowing you've arrived at that point can be elusive and requires an intuitive sixth sense that even the most experienced attorneys don't always have. The result is often a process that takes too long, costs too much and jeopardizes the outcome.  

Stay tuned as I dig deeper into the black box and share how we traverse those axes of conflict to create value for our clients.   
 

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