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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Real Property - Transactions

Date & Time
  • event Date

    Tuesday, December 15, 2020

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will provide real estate counsel with advice on navigating purchase and sale transactions following the economic contraction of 2020 and the public health restrictions and uncertainties related to COVID-19. Real estate stakeholders are reviewing agreements to determine whether there are conditions to closing or defenses based in law that might justify a decision not to proceed with a transaction. They are also addressing new considerations and risks given what we have learned from the early days of the pandemic. Lenders, sellers, and buyers, never more conscious of what can go wrong in a deal, are grappling with the uncertainties of what the new spike in COVID-19 may bring as they try to ensure that their transactions proceed to closing or, alternatively, to preserve their options.

Faculty

Elizabeth M. Akerman
Attorney
Strooch, Strooch & Lavay

Ms. Akerman provides clients with comprehensive counsel on complex commercial real estate transactions. She regularly advises institutional owners, operators, investment managers and developers on joint ventures, financings, developments, acquisitions, dispositions, development and restructurings of real estate assets across the United States.

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Loryn D. Arkow
Partner
Strooch, Strooch & Lavay

Ms. Arkow has extensive experience handling acquisition, disposition and development transactions; joint ventures, lending and other finance transactions; recapitalizations and workouts. She has represented a broad range of clients including large public pension funds, pension fund advisors, private equity funds and other investors, lenders, developers and sponsors in a variety of sectors, including retail, office, industrial, multifamily, condo development, homebuilding, medical and mixed-use projects.

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Joshua Sohn
Partner
Miscellaneous

Description

The current economic climate and risks of a second wave of shut downs causing limited access to government offices and other logistical challenges that create issues for real estate closings that counsel must address moving into 2021 and beyond.

As parties to real estate transactions assess both new—and continued—risks presented by the COVID-19 crisis and the subsequent economic downturn, they should consider the potential impact of issues related to the timing of closings. Whether to close on a “gap” or require a deed-recordation closing has become a more significant issue. Further, parties should consider the implications of "time of the essence" clauses as they structure their transactions, negotiate with counterparties and prepare for closings. Typical closing conditions, including tenant estoppels and dating down representations now more likely can throw a wrench into closings. Moreover, the economic fallout from the COVID 19 crisis has spurred some buyers to demand additional conditions to closing based on material adverse changes, which some sellers see as problematic.

Counsel must determine whether a non-performing party is in default for failing to close either due to strict enforcement of timing or an unwillingness to close. A non-performing party may assert defenses of impossibility of performance, frustration of purpose, violation of good faith and fair dealing, or force majeure in addition to claiming a failure of closing conditions.

Additionally, sellers, buyers, and lenders typically rely on third-party providers in the course of a sale/financing transaction. Not all third-party providers whose services are necessary to perform obligations under a transaction will be classified as essential workers. Counsel must check applicable and evolving ordinances and contact those providers directly to determine whether services are available in-person or remotely to proceed. Counsel must also assess how deadlines, including, but not limited to, filing deadlines, IRS Section 1031 deadlines, and due diligence deadlines for inspections, title, and survey, may be impacted.

Our expert panel will provide practical tips for drafting, negotiating, and defending positions for sellers, buyers and lenders in an environment mired with uncertainty from a myriad of causes, which continue to surprise as time goes on.

Listen as our expert panel provides practical tips and procedures for timely and successful closings in an environment limited by both the COVID-19 crisis and the economic recession that followed.

Outline

  1. How COVID 19 has impacted real estate closings
  2. Time of the essence
  3. Closing conditions then and now
  4. Potential defenses for breaching parties
    1. Impossibility of performance
    2. Frustration of purpose
    3. Good faith and fair dealing
    4. Force majeure
  5. Reliance on third-party providers
  6. Further PSA evolution from COVID-19 and the downturn

Benefits

The panel will review these and other key issues:

  • What closing and other risks should counsel consider due to the economic downturn?
  • Are there timing issues opposing parties in a sales transaction if there is a delay in closing a sales transaction?
  • What possible defenses exist to a breaching party of a real estate sales transaction and what is necessary to prove such a defense?
  • How does reliance on third-party providers impact real estate closings after 2020?
  • What drafting considerations should be addressed to anticipate potential uncertainties?
  • What are the best practices and procedures for conducting a real estate closing in 2021 and beyond?