Due diligence is essential when investing in, developing or financing commercial real estate. You must know the right questions to ask, and where to find the answers. The object is not simply to get to closing, but to assure that the project will function as intended after closing.
R. Kymn Harp
Robbins, Salomon & Patt, Ltd.
Due diligence is a standard of conduct. It is the amount of diligent inquiry due under the circumstances of your particular transaction. It requires that you determine, confirm and answer “yes” to every question required to be answered in the affirmative, and that you determine, confirm and answer “no” to every question required to be answered in the negative, for your project to proceed to closing and function as intended after closing.
In commercial real estate transactions, there are two layers of due diligence:
- Transaction due diligence; and
- Property due diligence.
TRANSACTION DUE DILIGENCE
In any commercial transaction, transaction due diligence requires that we ask and know the answers to fundamental questions in seven particular areas of concern. These areas of concern include the six elements of every story-line, plus authority of the parties to act. Transaction due diligence requires that you determine, confirm and know the answers to each of the following:
- Who are the parties to the transaction?
2. What property is included?
a. Real estate
b. Personal property
c. Franchise agreements or rights
3. Where is the property located?
4. Why is the property being acquired? – Intended use?
5. When must it Close? And other critical dates?
a. Due diligence period
b. Title delivery deadline
c. Survey delivery deadline
d. Financing deadlines
e. Section 1031 identification period and replacement property acquisition deadlines
f. Other critical dates
6. How will the transaction be structured?
c. Section 1031 exchange
d. Seller financing
e. Other transaction structure issues
7. By what authority are the parties acting?
a. Board approval, if necessary
b. Shareholder approval, if necessary
c. Governmental approvals, if necessary
d. Manager authority under LLC Operating Agreement
e. LLC member consent, if necessary
f. Landlord consent, if necessary
g. Lender consent, if necessary
h. Any other required consents or approvals or other sources of authority
When the “what” of Transaction Due Diligence is commercial or industrial real estate, the next step is to conduct an investigation of the property using all appropriate due diligence. Property due diligence is describes below.
PROPERTY DUE DILIGENCE
Property due diligence has four additional areas of concern. As discussed below, the four major areas of concern for property due diligence are market demand, access, use and finances. All of the questions concerning the property that need to be asked and answered when investing in, developing or financing commercial or industrial real estate fall within one or more of these four major areas of concern.
Property due diligence requires that you determine, confirm and know the answers to each of the following:
1. Market Demand
a. How will the property be used?
b. Who are the intended users?
c. Is there a need – and more importantly, will there be a need at the time the project is completed?
a. How will users get to the property?
b. Are there adequate traffic controls, stoplights, stop signs, etc.?
c. Adequate drives for customers and deliveries?
d. Sufficient roadway stacking room at nearby intersections?
e. Lawful curb-cuts?
f. Full access vs. right-turn only?
g. Adequate parking for business needs (which may be more than zoning requirements)?
h. ADA compliant/handicap accessible?
i. Any other access requirements or impediments?
a. Any private land use controls/restrictions on use?
b. Proper zoning?
c. Sufficient parking as required by zoning?
d. Sufficient occupancy capacity?
e. Adequate utility service?
f. If buyer is acquiring the property for its own use, are there any existing tenants or users that must be terminated or removed? Can they be lawfully removed?
g. Environmental issues? (which may be as much a finance issue as a use issue)
h. Other use requirements or issues?
i. Appraised value?
ii. Loan to value – equity requirement?
iii. Terms of financing?
iv. Lender required due diligence expenses?
v. Lease subordination required?
x. Subordination Non-Disturbance and Attornment (SNDA) Agreements?
y. Tenant Estoppel Certificates?
vi. Other lender requirements?
b. Financial Metrics
i. Real estate taxes and special assessments?
ii. Rehab/repair costs?
iii. User fees and recapture costs?
iv. Environmental remediation costs?
1. Lease income?
2. Security deposits?
3. Rental abatement?
4. CAM and operating expense reconciliations?
5. Landlord obligations to Tenants for build-out, etc.?
vi. Other financial benefits and burdens affecting the property?
Many of the white papers and posts on this blog delve more deeply into due diligence issues and concerns. You may find particularly useful my post Due Diligence Checklists: for Commercial Real Estate Transactions.
Should you need assistance, we have a number of attorneys at Robbins Salomon & Patt, Ltd. who are experienced commercial real estate practitioners and can help. Do not hesitate to reach out to us. We are always looking for new clients with interesting or challenging projects.