Buying and Selling Investment Property

Transcription

1 The Program: Sponsor: Cooperating Bar Associations: Buying and Selling Investment Property Community Outreach Committee, ABA Real Property Trust and Estates Section. National Bar Association Region II, Puerto Rican Bar Association, Metropolitan Black Bar Association, Asian-American Bar Association of New York, Alumni Association of CUNY Law School, Latino Lawyers Association of Queens County, Dominican Bar Association, Macon B. Allen Black Bar Association, Black Bar Association of Bronx County, Korean- American Lawyers Association of Greater New York, and ABA Real Property Trust and Estate Law Section s Community Outreach Committee Dates and Classroom: Wednesday evenings, October 28 through December 9, 2009 First American Title Insurance Company, 633 Third Avenue, New York, NY. Time: Program Description: Description of the Sessions: 6:30 p.m. to 8:45 p.m. General Description: Buying and Selling Investment Property is a seven-session fourteen-hour course on contracts to buy and sell real estate for investment purposes. Here the purchaser is principally focused on buying a reliable and growing stream of income while the seller s goal is receiving a chunk of money. Frequently, some or all of the sales proceeds are used to discharge debts including debts secured by the subject property. The lecturers will venture far beyond such questions as how to make sure the agreement binds the parties and what court decisions govern disputes in the absence of individual clauses. The course will examine the structure and substance of the contract of sale as well as the business issues underlying the transaction. They will specify the clauses sellers and purchasers need when the buyer is purchasing for investment purposes and explain why they re needed. The principal goal of the course is to elevate transactional law skill levels of practicing lawyers not already immersed in real estate deals. We aim to achieve the goal by dissecting contract of sale provisions clause by clause, illustrating the relationship between the business issues and the contract provisions; teaching how to draft understandable contracts using readable English words; and debunking archaic drafting techniques. Session 1: Functions and Structure of the Contract of Sale: Session 1 will focus on the function and structure of the contract of sale. Contracts of sale aren t all alike. You can think of them as a very large family of contracts that differ from each other widely. What binds them is that they all document relationships between sellers and buyers of real estate assets. Contracts to buy land for development differ enormously from contracts to buy one-family homes, and both are very different from contracts to buy investment property. Lecturers will explain how they differ. The lecturers will also discuss such vital issues as the difference between a letter of intent and contract of sale and the needs of prospective purchasers. They ll also explain how to organize a contract of sale and provide drafting tips. Session 2: Introductory Contract Clauses and Benchmarks for Title Insurance: In Session 2, we ll discuss introductory clauses of contracts of sale for investment real estate. The introductory clauses lay the foundation for the rest of the contract. That s where we define the parties, describe the property to be purchased, identify the broker or state there isn t any, indicate the purchase price, and establish the escrow. In this session, we ll also begin our discussion of title insurance and its impact on the contract of sale. Page 1 of 5

2 Session 3. Title Insurance Fundamentals: The course continues with lectures on title insurance fundamentals. Title insurance experts will explain how to choose among policy forms when you have a choice, what is and what isn t insured by a title insurance policy, and who is insured by a title insurance policy. Other topics include: negotiating additional coverage, what is a title insurance commitment, how a title commitment is organized, describing the property to be insured, and exceptions from coverage. The lecturers will also explain how attorneys for buyers can cope with title commitment exceptions and requirements. Session 4. Scheduling the Closing and Adopting Rules for the Period Between Contract Signing and Closing Date: Once a contract of sale is executed, the parties must turn their attention to the closing. Lecturers will explain how to schedule the closing date, set the closing place, and list conditions to the buyer s obligation to close the deal. Investment property buyers need the right to survey the property and terminate the contract if the survey reveals inappropriate title encumbrances or unacceptable physical conditions. How long should the buyer s right to terminate last, and under what circumstances should it be exercisable? In this session, we ll also explore the survey itself and discuss such topics as what to look for when you review a survey, the impact of the survey on title insurance, and how surveys should be certified. Session 5. Gathering Facts by Inspections and Searches: Investment property purchasers also tend to insist on inspection rights during a short period after the contract is executed and an option to terminate the contract after the inspection. How short should this period be? In Session 5, we ll discuss rules defining the extent of inspection rights, buyer obligations to protect and insure the property as the inspection procedures take place, and the seller s obligation to cooperate with the buyer s contractors and professionals as they conduct the inspection. Also on the Session 5 agenda will be the seller s obligations between the date on which the contract is executed and the closing including the seller s obligation to keep the property in good condition, maintain property insurance and liability insurance, and comply with legal requirements and the requirements of its property insurers. Session 6. Gathering Facts by Representations: No combination of physical inspections, title insurance, and public document review can provide all the information a buyer needs before his or her options to terminate the contract expire. Such information as the property s rent roll, the terms of its leases, its service contracts, and employment data aren t listed in public records. The only way to get this information is through the seller s representations. Lecturers will comment on the extensive set of representations needed by investment property buyers, arrangements for lease review by the buyer and his or her attorneys, and the degree (if any) to which the buyer will have access to the seller s books and records. If time permits, the lecturers will begin their review of closing procedures, guidelines for the closing, and consummating the closing. Session 7. The Closing, Interpretation, and Wrap-up: Our last session will conclude the review of closing procedures, closing guidelines, and consummating the closing. Topics include the seller's obligation to convey the property, regional closing styles, and closing formats recommended by the lecturers. Important rules concerning closing adjustments and documents to be delivered at closing will be covered. In addition, the lecturers will provide guidance on proposals to limit liability and provide for liquidated damages for the parties and the escrow agent. The session will conclude with a review of significant clauses on interpreting the contract. Page 2 of 5

3 Program Outline: Sessions 1 and 2: 1. Functions of the Contract; Describing the Parties, the Property, and the Purchase Price: a. Functions of the Contract i. Difference between a letter of intent and contract of sale. ii. Needs of prospective purchasers. iii. Seller enforcement rights. iv. Rules for closing adjustments and closing procedures. v. Post-closing adjustments. b. Structure of the contract of sale. i. The parties, the property, and broker relationships. ii. The purchase price. iii. The escrow. iv. Closing date, place, and conditions. v. Period between contract signing and closing date. vi. The closing. vii. Interpretation and communications. c. The parties and the property. i. Importance of choosing and identifying the parties correctly. ii. Identifying the property. iii. Broker relationships: iv. Agreement to sell the property. d. The purchase price. i. Purchase price negotiations. ii. Payment of the purchase price. 2. Benchmarks for the title and title insurance. a. Distinguishing title abstracts, title searches, title commitments, and title policies from each other. b. Distinguishing marketable title from insurable title. c. Contract of sale provisions concerning title to the property. i. EH Recommended Method: ii. Customary Method: iii. iv. Alternate Methods. Acceptable and unacceptable exceptions to the title commitment. v. Update the title commitment. Session 3: d. Origins of title insurance. e. Choosing the form of policy (when you have a choice). i. Forms of title insurance policies. ii. Peculiar States:. f. What is and what isn t insured by a title insurance policy? g. Who is insured by a title insurance policy? h. Special problems arising from naming partnerships, corporations and limited liability companies as insureds. i. Negotiating additional coverage. j. Title insurance commitments. i. What is a title insurance commitment? ii. How is a title commitment organized? iii. Describing the property to be insured. iv. Exceptions from coverage. Page 3 of 5

4 Session 4: 3. Scheduling the closing and adopting rules for the period between contract signing and closing date. a. Scheduling the closing date. i. Closing date. ii. Closing place. iii. Conditions to closing, b. Adopting rules for period between contract signing and closing date. i. The review period. ii. Sessions 5 and 6: Purchaser activities: (1) Surveying the property. (2) Gathering facts by inspections and searches. (3) Seller obligations. (4) Gathering facts by representations. 4. The Closing, Interpretation, Wrapup a. Closing Procedures. i. Seller s obligations to convey. ii. Regional closing styles. iii. EH recommended style. b. Guidelines for the Closing i. Adjustments. ii. Credits for unpaid taxes, assessments, water charges and sewer rents. c. Consummating the closing. i. Disburse the Purchase Price as adjusted to Seller. ii. Disburse other amounts payable in accordance with the Closing Statement. iii. Deliver keys and any other door opening devises and signals to Purchaser. iv. Deliver actual and exclusive possession of the Property in as-is condition to Purchaser. v. Delivery standards. (1) As is. (2) Vacant. vi. vii. (3) With or without tenancies and occupancies. Title policy marked and redated as of the closing. Notice to tenants. Session 7 d. Damages and liability. e. Liquidated damages for Purchaser s failure to close. i. Limited liability for Seller s inability to convey. ii. Limited liability for escrow agent. f. Survival. (1) Surviving representations. (2) Surviving covenants. (3) Post-closing adjustments. 5. Interpretation and communications. a. Interpretation. b. Notices. 6. Reviewing what we learned. Page 4 of 5

5 a. Faculty panel (all lecturers reappear). b. Student panel (selected students discuss what they learned and what more they need to learn). Faculty: Matthew Cahill: Vice President & Counsel, First American Title Insurance Corporation of New York. Emanuel B. Halper: President, American Development & Consulting Corp. Michelle V. Kelban: Partner, Latham & Watkins LLP. Mindy H. Stern: Partner, Schoeman, Updike & Kaufman, LLP; Former Chair, Committee on Real Property Law The Association of the Bar of the City of New York Gary S. Litke: Associate, Willkie Farr & Gallagher LLP. Martin Miner: Partner, Holland & Knight. Member, Community Outreach Committee, Real Property, Trusts, & Estates Section, American Bar Association. Vincent Plaia: Vice President & Counsel, First American Title Insurance Corporation of New York. Matthew Cahill: Vice President & Counsel, First American Title Insurance Corporation of New York. Vincent Plaia: Vice President & Counsel, First American Development & Consulting CorpTitle Insurance Corporation of New York. Mindy H. Stern: Partner, Schoeman, Updike & Kaufman, LLP; Former Chair, Committee on Real Property Law The Association of the Bar of the City of New York. Program Chairs: Martin Miner: Partner, Holland & Knight. Member, Community Outreach Committee, Real Property, Trusts, & Estates Section, American Bar Association. Emanuel B. Halper: President, American Development & Consulting Corp. Page 5 of 5