216.696.8700

Practice Group

Real Estate Attorneys

In the life cycle of any business – particularly as companies expand – leasing, buying, owning, selling, financing and developing real estate are crucial considerations. KJK’s Real Estate attorneys engage in a comprehensive real estate practice representing a wide array of clients. We understand that real estate transactions are as diverse as the organizations and people who transact them. KJK’s Real Estate lawyers counsel buyers, sellers, owners, developers, landlords, tenants, investors, lenders, borrowers and businesses in residential, commercial and industrial real estate projects and transactions.

We’re full-spectrum real estate attorneys.

Representative Experience

Our team provides clients with legal counsel, practical guidance and extensive experience in navigating all the stages of real estate transactions from land acquisition through construction financing, lease-up and permanent financing.

Real Estate Legal Services

Full Service - Acquisition, construction & financing
  • Acquisition, construction and financing of shopping centers in Ohio, Illinois and Virginia
  • Acquisition, construction and financing of apartment and mixed-use developments in Florida, Ohio, Arizona and Virginia
  • Acquisition, construction and financing of condominium developments in Ohio, Georgia and Arizona
  • Acquisition and financing for over 150 single tenant retail and commercial sites in 17 states
  • Representation of a developer in the re-development of multi-vacant properties in major metropolitan business districts, which involved bonds, state-funded loans for vacant property initiative, historic tax credits (state and federal), TIF, recovery zone bonds and new market tax credits
  • Representation of real estate investor in the simultaneous acquisition of more than 8 properties located in 2 states, including negotiation of CMBS mortgage financing, coordination with local and DE counsels and preparation of special Ohio and non-consolidation opinion letters
Financing
  • Counsel to borrower in a multi-million dollarsecuritized mortgage-backed refinancing transaction of a multi-tenant major retail shopping center 
  • Representation of medical professionals in a note participation financing transaction providing unsecured capital to facilitate the refinancing of a medical building
  • Representation of buyer in connection with multi-million dollar securitized mortgaged-backedtransaction 
  • Counsel to senior lender in stand-by bond purchase agreement and related unsecured revolving credit facility to finance private higher education facility
  • Representation of real property owners and lenders in connection with loan workouts, forbearance agreements, note purchase transactions, short sales and deeds in lieu of foreclosure with respect to various types of real estate transactions
  • Representation of major local developer with the reorganization of its capital structure, including approximately 50 properties valued in excess of $220 million, in connection with the resolution of various partnership disputes
  • Representation of hotel developer in refinancing 3 hotels with aggregate loan values in excess of $50 million
  • Representation of non-profit client seeking historic tax credit approval for building renovations valued at $2 million
  • Representation of a local developer in site acquisition, leasing, construction and financing of multiple store locations for a major national drugstore chain
Construction & Development
  • Representation of a large local hospital on the construction of a new Emergency Room and Patient Tower
  • Representation of Fortune 200 insurance company on the acquisition and development of hundreds of sites in multiple states
  • Handled all aspects of the development of the Rock and Roll Hall of Fame and Museum, including State, County and Federal legislation, County and Port Authority Bond financing, ground leasing and submerged land leasing, Corps of Engineers and FAA permitting, and architects and construction contracts
Sale of Real Estate
  • Representation of a multi-location Cleveland automobile dealer in the sale of dealership real estate to a national real estate investment trust
  • Selling and leasing of an 800,000 square-foot warehouse complex
  • Developing, acquiring, selling and financing several major hotel properties located throughout the eastern United States
  • Representation of City of Cleveland in the sale of the Cleveland Convention Center to Cuyahoga County, including the negotiation of related agreements to address reciprocal easements, joint operation of the Convention Center and Public Auditorium, pedestrian access to the Cleveland Browns Stadium and the turnover of the Malls back to City control.
Acquisitions
  • Acquisition of hundreds of sites for one of the largest home builders in the U.S.
  • Representation of multiple borrowers in connection with securitized mortgaged-backed transaction with respect to issuance of non-consolidation of legal opinions and related structuring of special purpose entities (SPEs) in order to comply with rating agency requirements 
  • Representation of developer in the acquisition of an 11 shoppingcenter portfolio valued at $200 million, in connection with the settlement of litigation 
  • Representation of fast foodfranchise operator in leasing and purchase of 30 properties throughout Ohio and Florida 
  • Representation of the developer of a 650,000 square-foot office complex in downtown Cleveland, including negotiating joint venture agreements, construction and permanent financing and negotiating and drafting leases with sophisticated national tenants

Purchase & Sale

KJK has represented both buyers and sellers in connection with the purchase and sale of many different types of projects and properties across the country:

Purchase & Sale Projects
  • Apartment Complexes
  • Developable Land
  • Hotels
  • Industrial Facilities
  • Medical Facilities
  • Mixed Use Developments
  • Multi-State Transactions
  • Office Buildings
  • Portfolios of Properties
  • Shopping Centers
  • Warehouses

Leasing

KJK has extensive experience negotiating real estate leases and subleases for a wide range of properties on behalf of both landlords and tenants. Our leasing experience includes:

Leasing Projects
  • Assignment & Subletting Rights
  • Environmental Risk Allocation
  • Landlord & Tenant Disputes
  • Landlord Remedies
  • Lease Terminations
  • Modifications Related to Tenant Financing
  • Property Management Issues
  • Rent Restructuring & Co-Tenancy Discussions
  • Responses to SNDA & Estoppel Requests
  • Tenant Improvement Allowances
  • Waivers of Subrogation

KJK Real Estate Practice Group

By the Numbers

years of experience

real estate transactions negotiated annually

sq. ft. of leases negotiated

Real Estate Law

Frequently Asked Questions

Does a contract for the purchase/sale of real estate need to be in writing to be enforceable?

Yes. In Ohio (and most other jurisdictions), the “Statute of Frauds” controls, which basically is an ordinance (originating from a 1619 British Act of Parliament) establishing that certain contracts must be memorialized in a signed writing, to be enforceable.

Specifically, Ohio’s Statute of Frauds (ORC Sec. 1335.05) provides that “no action shall be brought upon a contract or sale of lands or interest in or concerning them, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith”.

Do I need to worry about “Boilerplate” language in a contract?

Yes. If you define “Boilerplate” as tough, or unfair, one-sided contract language, as a general rule, courts will uphold such language in commercial agreements, unless it is contrary to statutory law or public policy. Courts traditionally presume that commercial parties are on more of an equal playing field and are more sophisticated concerning commercial real estate transactions, since both parties to a commercial transaction will usually have attorneys to review their documents. The old adage that if you represent yourself, you often will have a fool for a client is just as true in real estate as it is in the courtroom. A careful review by an attorney, before you sign on the dotted line can save thousands, even millions in unbudgeted expenses and liability.

Does Ohio’s Residential Property Disclosure Form alleviate the need for inspections and due diligence?

No. Inspections and other due diligence should always be done by the buyer of any property, regardless of any statements of the seller (whether on a Disclosure Form, in the form of representations and warranties in the contract, or otherwise). As President Ronald Reagan told Mikhail Gorbachev a number of years ago regarding reducing nuclear arms, “Doveryai, no Proveryai” (“Trust, but verify”). As a general rule, “Caveat Emptor” is still alive and well in Ohio. The Disclosure Form is helpful, but provides only limited information/protection.

Is there more than one way to hold title to real estate?

Yes. If you are an individual, there are several ways you can hold title:

  • Individually – You could hold title in your individual name
  • Tenants-in-Common – This form of taking title exists when two or more persons wish to buy property and own it together. If any of the tenants in common die, their interest passes to their heirs, not to the remaining tenants
  • Joint Tenants with Right of Survivorship – This form of taking title is similar to the Tenants-in-Common ownership, where two or more persons may acquire title to real estate in varying “undivided percentages of interest”. Upon the death of one of the Joint Tenants, however, that particular interest automatically passes to the surviving Joint Tenant(s), without the need to go through probate. Often, husbands and wives will take title to real property as “Joint Tenants with the Right of Survivorship
  • Via a legal entity – Individual(s) can also form an entity (e.g., corporation, limited liability company [LLC]); or create a trust, for example, and have the Trustee hold property for the Trust. For commercial property, we most often advise that title be held in a new LLC or other entity
Does a deed need to be recorded to legally transfer title?

Technically, no.

A deed need not be recorded (in the office of the county recorder in the county in which the property is located) to be valid as between grantor (“Seller”) and grantee (“Buyer”).   However, the filing and recording of same is good evidence that the deed was delivered to the Buyer; one of the requirements for a deed to legally transfer title.

  • Individually – You could hold title in your individual name
  • Tenants-in-Common – This form of taking title exists when two or more persons wish to buy property and own it together. If any of the tenants in common die, their interest passes to their heirs, not to the remaining tenants
  • Joint Tenants with Right of Survivorship – This form of taking title is similar to the Tenants-in-Common ownership, where two or more persons may acquire title to real estate in varying “undivided percentages of interest”. Upon the death of one of the Joint Tenants, however, that particular interest automatically passes to the surviving Joint Tenant(s), without the need to go through probate. Often, husbands and wives will take title to real property as “Joint Tenants with the Right of Survivorship
  • Via a legal entity – Individual(s) can also form an entity (e.g., corporation, limited liability company [LLC]); or create a trust, for example, and have the Trustee hold property for the Trust. For commercial property, we most often advise that title be held in a new LLC or other entity
Why record a deed?

Without a recording of the deed, the grantee has little protection from its grantor, or anyone else from recording liens or other encumbrances against the title which would have priority over the unrecorded deed. Moreover, if the grantor transfers the same property by deed to another grantee (and the second grantee has no notice of the first transfer), prior to the first grantee taking possession; the second grantee owns the property and the first grantee owns nothing but a lawsuit.

What is the difference between a general warranty deed and a limited warranty deed?

 An owner transferring property by way of a general warranty deed is providing a warranty to the buyer (the grantee) for any and all prior problems with title, not just title issues that occurred during the owner’s period of ownership.  On the other hand, when transferring property to a grantee/buyer by way of a limited (or special) warranty deed, the owner is limiting the warranty to the period during which the owner owned the property.

Why do I need title insurance?

If you are financing a residence or commercial property, your lender will require you to obtain a Loan Policy of Title Insurance as protection for the lien of the lender’s mortgage.  You may also obtain an Owner’s Policy of Title Insurance to protect your ownership of the property from such potential title threats as boundary disputes, errors in your deed, claims by an ex-spouse, and liens from contractors or previous lenders.  We certainly recommend that an owner of real property obtain the protection of title insurance.

If I need an easement, should I care whether it is exclusive or non-exclusive?

It depends on the type of easement you need. Exclusive means that you are the only party that can use the easement for its stated purpose.  Non-exclusive means that additional parties can be granted the right to use the same easement as you.  For example, if you need a driveway easement for access, you would want that to be an exclusive grant to you so that others cannot be granted the right to also use your driveway easement.

In my construction contract, should I specify arbitration or litigation for dispute resolution?

There is no clear answer.  Many believe that arbitration, because it is a private and confidential proceeding (no public records), with limited discovery,  will cost less than litigation. But, that is not always true. One concern about litigation is that judges and juries do not understand complicated construction disputes, which can lead to unpredictable and unsatisfactory results; properly selected arbitrators can eliminate this concern.  No single answer will fit every case, so you should call an attorney to discuss your choices.

I am constructing a new building. Should I require the contractor to provide a Lump Sum Contract or a Guaranteed Maximum Price Contract (GMAX)?

You need to understand how those types differ before making a decision.  In a lump sum or stipulated sum contract, the contractor agrees to provide specified services for a fixed price, which is based upon estimated labor and material costs plus the contractor’s overhead and profit. If the actual costs are higher than the estimate, the contractor’s profit will be reduced.  If the costs are lower, the contractor gets more profit.  Under a GMAX the contractor is compensated for actual costs incurred plus a fixed fee, subject to a maximum total contract price.  Cost overruns are the responsibility of the contractor; any cost savings benefit the owner.  Sometimes savings are shared between the owner and contractor as an incentive to keep costs down.

What does legal non-conforming use mean?

A legal non-conforming use is the use of land or a structure which was legally established according to applicable building and zoning codes that were in effect when the use was established,  but does not meet current building and zoning regulations.  Generally, the non-conforming use can be maintained until the use is discontinued or abandoned for a prescribed time period.

Do I need a homeowners’ association?

When developing a residential subdivision, a homeowners’ association, set up in accordance with Ohio law, can be a major benefit (and sometimes required). A homeowners’ association is like a “mini-government” that can enforce rules and regulations so that the entire subdivision is aesthetically pleasing and maintained. There are two (2) main reasons to set up a homeowners’ association: (1) if the developer or homeowners worry about uniformity within the subdivision; or (2) if there are any “common areas” (which are areas of the subdivision that are for the benefit of all homeowners within the subdivision). But setting up a homeowners’ association is a complex endeavor and should be done very carefully with detailed (and often lengthy) documents that are recorded with the Ohio Secretary of State and the local County Recorder.

Real Estate Law

Attorneys

Matt Viola Cleveland Real Estate Attorney

Matt T. Viola

CHAIR

Steven Marrer Cleveland Attorney

Steve A. Marrer

PARTNER

Steve Richman

Steve D. Richman

SENIOR COUNSEL

Anne Corrigan

Anne T. Corrigan

PARTNER

Peggy Beistel

Peggy S. Beistel

ASSOCIATE

Peggy Beistel

Peggy S. Beistel

Associate

Anne Corrigan

Anne T. Corrigan

Partner

Steven Marrer Cleveland Attorney

Steven A. Marrer

Partner

Steve Richman

Stephen D. Richman

Senior Counsel

Matt Viola Cleveland Real Estate Attorney

Matthew T. Viola

Partner

Contact

CLEVELAND OFFICE

1375 East Ninth Street

One Cleveland Center, 29th Floor

Cleveland, OH 44114-1793

216-696-8700

 

 

COLUMBUS OFFICE

10 West Broad Street

One Columbus Center, Suite 1900

Columbus, OH 43215

614-427-5731

 

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