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National Business Institute
Overlooking issues during the due diligence process can cost you time, negotiation leverage and it opens the door to expensive surprises after closing. The numerous areas of inquiry - combined with limited timeframes and pressure to cut corners - means that mistakes are easy to make. Is your due diligence comprehensive? This guide will explore the top due diligence oversights so you can effectively avoid them in your practice. Prevent bad deals and ensure a smooth transaction - order today!
When buying a commercial real estate property, the brokerage agreement is between the buyer or seller and the broker. The broker is an agent of the buyer or seller and, as an agent, has fiduciary duties to the client. Sometimes the broker could act as a dual agent, which creates potential conflicts of interest. Real estate counsel can serve to ensure the broker will represent a client's interest in a transaction by crafting a detailed agreement that meets those needs.
Most states recognize that real estate brokers occupy a position of trust through a fiduciary relationship with the parties they represent. A fiduciary relationship brings with it requirements of fidelity and good faith. These issues are often raised in claims that an agent has acted as a real estate broker and a buyer (or seller) of a property. It is a potentially dangerous position for an agent to occupy.
The benefit of the brokerage agreement is clear communication between the buyer (or seller) and the broker. It is an excellent opportunity to discuss who will perform what tasks. At a minimum, the best agreements shall establish: (1) the timing for completing tasks, (2) when and how the broker is paid, (3) how to handle broker expenses, and (4) when the broker's representation ends.
The broker agreement should limit liability and include indemnification language that protects the broker from the client's acts and ensures that clients are not held responsible for the broker's act. Because this is an agency relationship, the client must communicate to the broker what representations or statements the broker can make on behalf of the buyer or seller. If a dual agent situation cannot be avoided, the issues of potential conflicts of interest should be addressed in the agreement.
Listen as our expert panel discusses what constitutes an enforceable broker agreement, clarifies provisions to establish clear fiduciary duties, and outlines how to avoid conflicts of interest while limiting potential liability for the acts of others.
While federal law largely shields lenders from environmental liabilities and cleanup costs on indebted properties, lender missteps and poor loan documentation can result in a loss of that protection and put lenders on the hook for environmental remediation.
Environmental hazards can also negatively impact a borrower's ability to repay the loan and decrease the collateral value, which is why it is essential to uncover the hazards before the closing of the loan and formulate a plan, whether a Phase I environmental site assessment or some lesser action.
A critical protection for the lender is an indemnification agreement with the borrower as part of the loan documentation. Other key loan agreement provisions include reps and warranties, covenants, notice provisions, and inspection rights. Another option for the lender is to require the borrower to obtain insurance, usually in a pollution policy.
Lender environmental due diligence at the time of a loan default or workout is also critical as environmental hazards must be considered when assessing the collateral value and a workout plan. Of course, if foreclosure appears imminent, the lender liability must be carefully evaluated as the lender prepares to take possession of the property.
Listen as our authoritative panel of experienced attorneys analyzes lender liability for environmental cleanup and remediation liabilities. The panel will discuss theories of liability and best practices for lenders to minimize direct liability and diminution of the collateral value. The panel will address risk mitigation in loan origination and during the life of the loan, including workouts and foreclosures.