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Commercial Leasing – Top Strategies for Prospective Tenants

By Walt Burton, March 3 2013

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1. Do a Thorough Review of Your Prospective Tenant Needs. Prior to starting the property search, perform an evaluation of your overall business strategy and needs. Ideally, give yourself at least 9-12 months to complete your review and identify the location of your future lease premises. How much space do you need? Is telecommuting or flex time an option for your employees? How important is location? Do you need to be close to your customers? Where are your employees located? Do they need mass transit access? Is parking a major issue? Is visibility (from major roadways) important to the success of your business? What about signage? Are you willing to execute a long-term lease? Do you need a termination right? How quickly is your business growing? Do you need an expansion strategy? Do you need use restrictions on the non-leased premises at the property to be successful? 2. Engage a […]

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Tennessee Mechanics’ and Materialmen’s Lien Statute Summary

By Walt Burton, February 5 2013

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In Tennessee, like most states, there is a statutory means by which a person or company who provides labor or materials for the improvement of real estate can secure payment for the work or materials. Tennessee’s mechanics’ or materialmen’s lien statute was overhauled in 2007 to make it easier to understand and more simple; however, the statute remains full of potential pitfalls and rife with deadlines of various types that can be costly for the unwary. We recommend hiring a commercial real estate attorney to ensure your rights are protected. Although the statutory changes in 2007 require that the statute “be construed and applied liberally to secure the beneficial results, intents, and purposes” of the statute, “strict compliance” with the statute is still required. Tenn. Code Ann. § 66-11-148; Sequatchie Concrete Co. v. Cutter Labs., 616 S.W.2d 162, 165 (Tenn. 1980). To have a lien, the claimant must have improved […]

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FDIC D&O Lawsuits Continue in Georgia

By Walt Burton, January 28 2013

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In December, I wrote an article about the FDIC’s fervent pursuit of lawsuits against former directors and officers of failed banks in Georgia. At the time, the FDIC had elected to sue directors and officers at 11 of the approximately 85 banks that have failed in Georgia during this economic downturn. Since I published that article, the FDIC has continued its onslaught against the directors and officers of failed banks in Georgia by filing 2 additional lawsuits last month. Both lawsuits were filed in the Northern District of Georgia against former directors and officers of First Security National Bank, which was based in Norcross, Georgia, and Rockbridge Commercial Bank, which was based in Atlanta, Georgia. The complaints against the directors and officers of these banks are substantially similar to the complaint against the directors and officers of Buckhead Community Bank that I discussed previously. In the case against First Security […]

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What to Expect in a Commercial Real Estate Loan Sale

By Walt Burton, January 22 2013

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I’m currently advising a bank client regarding the purchase of a loan secured by distressed retail commercial real estate. There are numerous reasons lenders decide to buy and sale loans. Often, sellers are facing liquidity demands, regulatory pressure, lack of experience working out a specific type of distressed asset, or simple portfolio realignment. Buyers often have excess capital to lend or invest, possess the experience to work out a distressed loan, or simply want to try and get control of the note to attempt to foreclose on the underlying commercial real estate. Recently, it seems like most sales that I see are regulatory related, as banks are pressured to move underperforming or disfavored industry-specific loans (i.e. homebuilder, retail, leisure) out of their portfolios, sometimes at significant discounts. Many loan sales occur after the FDIC has seized a lending institution and placed it into receivership. Loan sales can include pools of […]

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Construction Lending–Do Lenders ever owe a Duty to Ensure Construction Funds are Used Properly?

By Walt Burton, January 11 2013

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I can count on one hand the number of times I’ve seen commercial real estate construction projects come in under budget. It never fails that last minute changes, upgrades, or “surprises” cause costs to be higher than expected. Most of the time, one’s construction budget has been pre-approved by the lender and all draw requests are made as one progresses from beginning to end of the project. So what happens if the lender isn’t really paying attention, funds all draw requests, and construction funds run out while the project is only partially completed? Whose fault is it? A question raised by this perpetual problem is what obligation, if any, does your lender have to make sure that your project is progressing appropriately and that the money that the lender has provided for the project is being used appropriately or prudently. Recently, the Tennessee Court of Appeals decided a case involving […]

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