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Business Law Update: A Booming Downtown Real Estate Market Means Businesses Should Pay Careful attention to Contracts.

June 5, 2018 1 comment

Happy Tuesday, all.

I took this photo yesterday from the skywalk between the Amway Grand Plaza and the DeVos Place Convention Center. I like walking downtown and watching the development unfold.

6.4

It is an exciting time to be working or living in downtown Grand Rapids. Everywhere you look, real estate development is transforming the town.

Check out Experience Grand Rapids for a detailed list of all the current downtown development.

Not to rain on anyone’s parade (but that is kind of a lawyer’s job)…

With increased commercial activity comes increased opportunity to fall into legal pitfalls.

 

 

As I tell my clients – if you are in business for any amount of time, it is just a matter of time, you will probably get into a business dispute.

Real estate development is no exception. The more transactions, the more opportunity for hiccups along the way.  A Court opinion I read last week brought this reality to  my mind.

 

Case Study

Last week an unpublished Michigan court of appeals case was released that highlights some contract drafting pitfalls. You can check out the May 31st unpublished decision of Greater Faith Transitions, Inc. v Ypsilanti Community Schools here

 

The case was about a commercial lease in which Landlord also granted Tenant an option to purchase the Building.

These “lease with options to purchase” can pose interesting questions – as the facts of this case illustrate.

Summary of the Facts

  • On August 13, 2013, plaintiff and defendant entered into a lease with option to purchase a property in Ypsilanti owned by defendant.
  • The parties intended the lease to be effective until August 31, 2018.
  • Under the lease terms, plaintiff was required to make monthly rent payments and to pay for all utility bills, including water bills.
  • According to plaintiff, it had attempted to enforce its option to purchase the property in a text to defendant on February 2, 2017, that stated:
    I tried to call you to make you aware of the fact that we’re buying the church this year.
  • On February 13, 2017, defendant sent to plaintiff a letter from its attorney and a Notice to Quit Termination of Tenancy, claiming that plaintiff was in default of the lease for repeated failure to pay water bills.

Plaintiff, tenant, sued its landlord, among other things, for interfering with its right to exercise its option to Purchase.  The trial court ended up dismissing Tenant’s lawsuit.

The tenant appealed.

The opinion of the Court of Appeals was interesting, essentially holding that the tenant’s claim for breach of contract was not ripe – since a contract was not yet breached. The tenant was not yet evicted.

(See opinion, page 2 – “Plaintiff claims that “Defendant’s improper use of summary proceedings to evict Plaintiff from the leased premises will breach the parties’ Lease
with Option to Purchase because Plaintiff will be deprived of its right to cure any defaults during the term of the Lease (i.e., through August 31, 2018) so that Plaintiff can exercise its option to purchase thereunder.”)

 

The ultimate ruling aside, the case, to me, provides a good opportunity to highlight a few drafting issues that can come up in commercial leases.

First, a general point I want to bring to the business owner’s attention:

Why Careful attention to Business Contracts is important – Freedom of Contract 

First and foremost, when entering a business contract each party should understand – they will be bound to the contracts they sign.

In a commercial lease context the courts’ mantra is “Freedom of Contract“.

The Court will look at the contract that the parties’ agreed to, and, absent extraordinary circumstances, enforce it by its term. (therefore in  a commercial lease you might see language such as the following “rent is due with no right of offset, setoff, counterclaim…”) In such instance, the landlord is telling the tenant that tenant has no right to withhold rent just because landlord may have breached a duty under the lease.

The Courts have recognized that commercial landlords and tenants are “free to contract”:

 

Drafting Issues.

Going back to the court opinion, it doesn’t appear to me from reviewing the opinion that the parties disputed that the tenant defaulted in failing to pay utility bills.

Question:

Did the lease have a provision that said that the “Option to Purchase” terminated if:

  • the tenant had been in default at any time?
  • or, only in Default at the time the Option was being exercised?
  • Or, did it say nothing on the subject of Default?

Another question:

was there a lease provision that strictly provided where “notices” must be sent?

e.g. – was it left up to the parties to interpretation whether or not notice delivered “via text message” was an appropriate method?

 

If these issues are plainly addressed in business contracts, then possibly, the parties avoid a lawsuit.

 

 

Questions? Comments?

e-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauk

 

 

 

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Real Estate Law Update: The Most Vulnerable Are Affected in an Affordable Housing Crisis.

Today, is a gray rainy cold day in Grand Rapids, Michigan.

Yesterday, like most every Thursday during the school year, I spend the noon hour with an elementary school-aged kid in one of the most economically depressed school districts in Grand Rapids, Michigan.

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Over the last 4 or 5 years I have had 4 different students that I mentored.

Inevitably, they all move. Their families end up getting evicted, become homeless, or just leave to find new housing that they can afford.

 

Poverty in your Backyard

If you live in West Michigan, I urge you to pause and consider the poverty and vulnerability that exists in your own backyard. It is astounding to me that just a 15 minute drive from the suburbs kids are experiencing hunger and homelessness.

Right now.

It is no secret that Grand Rapids is experiencing an Affordable Housing Crisis.

 

The American Bar Association Journal reported recently that nearly 1 million U.S. households were ordered evicted in 2016. 

 

At the school where I mentor, the stories that I hear about infestations are sad.

Kids talk about roaches, bed bugs, mice.

Particularly, I hear a sense of dread about bed bugs.

I have previously blogged about some proposed Michigan legislation that would establish rights and duties concerning bed bug infestation in residential Landlord Tenant relationships.

 

Beg Bug Legislation.

One June 9th  2017 Michigan House Bill 4719 was introduced – by Representative Brandt Iden -himself a Developer and Property Manager in South West Michigan. check out the text here – the Bill would amend the Michigan statute governing landlord tenant relationships to include addressing the control of certain pests – including bed bugs.

 

Update

There has been no noticeable progress and this Bill appears to be dead. The House Fiscal Agency prepared its legislative analysis back in October 2017 – you can check it out here for details

 

What the Bill seeks to do:

Impose certain duties on landlords regarding bed bugs:

1. Mandates specifically that the Landlord is to keep the rental space free from bed bugs and provide educational literature about bed bug infestations to new tenants.

2. Prohibits Landlords from renting out space that the landlord knows is infested with bedbugs

3. Provides specific requirements for a landlord to respond to a complaint of bed bugs:

  • within 7 days of receiving a complaint, Landlord shall order an inspection for bed bugs;
  • within 7 days of confirming infestation, Landlord shall begin control and schedule inspections of adjoining rental units.

4. Limits damages against Landlord for infestations unless caused by Landlord’s Negligence.

Impose certain duties on tenants regarding bed bugs:

1. Tenant shall inspect for bed bugs when first occupying the space;

2. Tenant shall not move “infested property” into a rental unit

3. Tenant shall notify Landlord within 2 days of notice of infestation.

4. Tenant responsible for damages due to bed bugs caused by Tenant, or guest.

The bill was referred to the Committee on Law and Justice.

Something that the legislative analysis highlights –

“Notwithstanding any other provision of the Landlord-Tenant Act, the landlord and tenant could agree in writing (by hard copy) or electronic mail how responsibility would be assigned for costs resulting from an infestation, including, but not limited to, costs of
control or treatment.

This would provide some discretion among the parties to craft a resolution.

 

 

Michigan Poverty  Law Program’s Opposition

The House Law and Justice Committee met in October 2017.  The Apartment Association and Property Management Association affirmed its support of the Bill. The Michigan Poverty Law Program testified in opposition to the Bill.

You can review the Michigan Poverty Law’s written statement in opposition here

The Poverty Law Program acknowledged in its remarks that bed bugs are a serious problem in many communities, but opines that this Bill is not the answer.

Bedbug infestation is a problem. It can cause tenants problems, particularly in lower income housing. As reference, I would highly recommend reading Matthew Desmond’s book “Evicted” It is no secret that Michigan, particularly Kent County, is experiencing an Affordable Housing Crisis.  Further, unhappy tenants who withhold rent can cause landlord problems that end up in court.

 

In my opinion, this type of bill could provide clarity to landlords and tenants on their reciprocal duties and rights in such circumstances. It could also provide them flexibility to come up with a resolution to get rid of any infestations.

I am grateful for those like the Michigan Poverty Law Program who are advocating for the vulnerable in our communities – people like the kids I mentor every week.

I would also call on opponents of this Bill to propose a solution.  If the Bill proposed back in June 2017 is not good policy, then please propose one that you believe is good policy.

 

 

 

Questions? Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

Real Estate Law Update: Evictions, Affordable Housing, Harassment provide an Opportunity for Investors to Shine Brightly.

April 18, 2018 Leave a comment

I wrote my last post right before leaving for a week on the beautiful, warm beaches of Destin, Florida. We came back to snow. In Spring.

Michigan has experienced some awful weather in the last week. I hope today is the turning point. Most of the snow is melting, as you can see from today’s photo.

The headline of my post says it all:

4.18Owning and Managing Real Estate is uniquely challenging.

 

I hear it from my Property Owner/Manager clients. I experience it when I am involved in negotiating in landlord/tenant disputes.

 

I see the affects of a lack of affordable housing on the most vulnerable in our population.

I see it when mentoring at a local school, or serving at Mel Trotter Ministries.

 

 

 

If you own or manage investment real estate, you are involved in messy business.

 

And there are many investors who are simply part of the problem.

 

DOJ Sues Landlord for Sexual Harassment Allegations

Just one week ago in a recent press release  the Department of Justice, announced that it filed suit against Owners and Managers related to allegations of sexual harassment in New York..

According to the press release, the owner and manager:

 since at least 1990, Douglas Waterbury has sexually harassed numerous women who have lived in or inquired about the defendants’ residential rental properties.  The suit alleges that Waterbury’s conduct has included demanding or pressuring female tenants and potential tenants to engage in sex acts with him in order to obtain or keep rental housing; subjecting female tenants and potential tenants to unwelcome sexual contact and groping; offering to grant tangible housing benefits, such as reduced rent or deposit payments, in exchange for sex acts; refusing needed maintenance services or otherwise taking adverse housing actions against female tenants who refused his harassment; and making unwelcome sexual comments and advances.  The conduct alleged in this complaint is egregious, ranging from demands to exchange sex for rent, to unwanted sexual encounters.

 

I believe that is why, at least in West Michigan, there is an opportunity for real estate investors to stand out.  To shine.

 

“Evicted” – Lack of Affordable Housing

I have written many times about West Michigan’s Affordable Housing Crisis.

Last week the ABAJournal posted an article on extensive research performed by Matthew Desmond, author of “Evicted”

According to the research, evictions are much more prevalent than first believed. This is not surprising to me, given the lack of housing for the most vulnerable population in West Michigan.

As the ABAJournal article notes, the consequences of evictions are many:

“…Schools reroute buses to homeless shelters, job applicants have no answer when a form requires an address, and families who don’t have an address to receive renewal notices lose public lose food stamps and Medicaid benefits. Some people take years to recover, and the eviction remains on their records, causing problems when they look for future housing.”

 

Shining Brightly as part of the Solution.

West Michigan is attempting to address the Affordable Housing Crisis. This is a community wide problem that will require an entire community to come around it.

At the beginning of this year, Kent County implemented an “Eviction Prevention Program” – to keep vulnerable people in housing. You can learn more about that here.

Local non-profits and churches in partnership with Luis Palau Association are implementing One West Michigan intended to mobilize the community, churches and non-profits to come together to address those issues most pressing – this includes Affordable Housing.

 

Finally, as I’ve written before – I believe the Affordable Housing Crisis that we find ourselves in provides a unique opportunity for Real Estate Investors to be different.

To shine brightly.

 

 

 

e-mail: Jeshua@dwlawpc.com

Twitter: @JeshuaTLauka

www.dwlawpc.com

 

 

Michigan Law Update: The Neighborhood and Commercial Corridor Food Initiative. Community Revitalization Now Includes Downtown Grocery Stores.

January 17, 2018 Leave a comment

 

Several years ago ago I took my family to New York City. (and took the below photo).

Even amidst the chaos of protecting my 4 young children from darting out in2015-11-26-13-04-02to oncoming traffic – we absolutely loved the City.

 

We loved the walk-ability of City life –

that you could walk down a block to a grocery store and get all of your household needs.

 

I love downtown Grand Rapids.

 

(Below, photo I took this morning from my office)

If Grand Rapids wants to encourage urban living, it needs to continue to support growth in downtown grocery stores.

 

This is not a novel concept.

There has been recent exciting development in Grand Rapids on this front – see Meijer opening a grocery store on Bridge Street.

Also, Russo’s International Market opened last year as well.

31475361-29c9-4425-948b-a1699f87f148-original

 

“Neighborhood and Commercial Corridor Food Initiative” – Public Act 229

Last March, House Bill 4207 was introduced in the Michigan house. Known as the “Urban Food Initiative.” (re-named “Neighborhood and commercial corridor food initiative”)

This Bill intended to provide incentives for community revitalization that would include a downtown Grocery Store.

Specifically, HB 4027 would make “Urban Food Initiatives” allowable to receive funds under the Michigan Community Revitalization Program

 

Passed into Law

On December 28th this House Bill was given immediate effect and assigned as Public Act 229 . 

 

The law provides incentives to “new neighborhood” food initiatives. That is why, per the new law:

a new neighborhood and commercial corridor food initiative…is not eligible for a community revitalization incentive if it is located within 1 mile of an existing retail supermarket, grocery store, or produce market…that offers unprocessed USDA-inspected meat and poultry products or meat products that carry the USDA organic seal, fresh fruits and vegetables, and dairy products for sale to the public.”

 

Hopefully this law will spur development of urban grocery stores in Grand Rapids, and beyond to places like Detroit. There is wonderful community development work going on right now in Detroit, as the article below highlights.

 

Healthy Food Options – Essential for Urban Living

Clearly having available and healthy food options in a downtown are necessary to City living. Check out this recent article from Non-Profit Quarterly about Communities of Color Developing Residents-Owned Groceries.

According to the Article:

“Grocery stores…often anchor “neighborhood economies, recirculating local revenues through wages and nearby businesses. They can also be neighborhood hubs, where people go to buy good food as well as employment centers and sources of community pride.”

“Alas, the lack of these hubs can be damaging, notes Malik Yakini, who directs the Detroit Black Community Food Security Network. Yakini is one of a host of activists across the country who are working to foster community ownership of food businesses in communities of color.”

 

We should be encouraging Malik Yakini and others and supporting community ownership of food businesses in communities of color. Hopefully the new law will attract such local ownership.

 

Parting Thoughts

A downtown grocery store is necessary if a City wants to attract urban living – it is also necessary to provide healthy food options for those living downtown without readily available transportation.

I think particularly of the under-employed and the homeless who receive services from organizations like Mel Trotter Ministries. In Grand Rapids, we are confronted everywhere with the need for Affordable Housing. It would be great to see grocery options as well.

I am also encouraged by the many businesses in West Michigan honestly asking the question: “How am I building a better community?

e-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

 

Legal Update: Legislation that Real Estate Investors, Landlords and Veterans Should Keep Tabs on in the New Year.

January 4, 2018 Leave a comment

It is a beautiful and cold afternoon in downtown Grand Rapids today.

IMG_2039

We head into 2018 with some Michigan Bills that affect Real Estate Investors, Landlords and Veterans.

Veterans.

The Michigan Legislature is pushing hard to protect those who have served our country.

Yesterday MLive posted that the Michigan Legislature is taking up some 50 bills that will affect Veterans

One such bill I highlighted in a post last summer. On August 16, 2017 HB 4872 was introduced into the Michigan House.

The Bill would amend the “Elliott-Larsen civil rights act,” and would provide that veterans are included in the list of those protected by Michigan law against housing discrimination.

The Bill would define Military Service as:

“STATUS OF BEING AN ACTIVE DUTY MEMBER OF THE ARMED FORCES OF THE UNITED STATES OR A VETERAN WHO RECEIVED AN HONORABLE OR GENERAL
ADMINISTRATIVE DISCHARGE FROM ACTIVE DUTY WITH THE ARMED FORCES F THE UNITED STATES.”

The Bill brings two thoughts to mind:

  1. Our Veterans and those who served our country deserve to be treated fairly in housing and all other areas of life.
  2. This Bill brings up a fundamental question: are Veterans being discriminated against in housing? Does it happen?

 

According to statistics recently published in the Bridge with insight from Dennis Van Kampen of Mel Trotter Ministries, there are fewer homeless veterans than ever in Michigan today, but more homeless youth.

The Bill was sent to the committee on Military and Veteran Affairs. No action has been taken on this bill since I posted in August, but I will continue to track this bill.

I look forward to hear comments from the public on this issue: are we in Michigan protecting our Veterans access to fair housing?

 

“Nuisance Property”: Bill Would Protect Those in Affordable Housing from being penalized for calling 911.

On November 28, 2017 Senate Bill 667 was introduced.

The bill is intended to prohibit local units of government from penalizing tenants, occupants, or landlords of rental dwellings for contacts made for police or emergency assistance in certain situations.

Presumably, the Bill is intended to restrict those municipalities that have ordinances that punish landlords and tenants by labeling a rental property a “nuisance” when a certain number of calls to police or emergency assistance.

The Bill in its current form, generally, holds a “reasonableness” standard – meaning the emergency call must be reasonable under the circumstances – the person making the call must reasonably believe they, or a person they are calling on behalf of, is a victim of a crime; and the intervention is needed to prevent a crime, or respond to an emergency.

 

This appears to be one of several Bills that would potentially address the affordable housing crisis.

As a reference, I would highly recommend reading Matthew Desmond’s book “Evicted” It is no secret that Michigan, particularly Kent County, is experiencing an Affordable Housing Crisis.

One potential way to address this crisis is providing Landlords and Tenants security that their local government unit will not unreasonably label properties as nuisances if the police are called for real emergencies. It appears this Bill is attempting to address such a scenario.

 

Questions? Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

Grand Rapids Combats Affordable Housing Crisis – Eviction Prevention Program

November 21, 2017 2 comments

 

You know winter is approaching when Rosa Parks Circle begins to freeze over and the ice rink begins to form. See the photo I took from my office yesterday.

In fact, the Ice Rink officially opens on Friday!

IMG_1926

 

Before we know it, downtown will look like a snow globe – see the photo, below, I took from last Christmas.IMG_1927
There is an Address Affordable Housing Crisis

As many of you know, Kent County, like much of the U.S. is experiencing a serious lack of Affordable Housing.

The City of Grand Rapids has made concerted efforts to address problem through an advisory board, which has come up with strategies for addressing the Affordable Housing Crisis

 

 

 

Kent County Eviction Prevention Program

Beginning January of 2018, the 61st District Court will begin a pilot program – the “Eviction Prevention Program” (EPP). Judges Faber and Distel are the initial judges presiding over the EPP.

The EPP was developed as a collaborative effort between the City of Grand Rapids, Salvation Army of West Michigan, The Kent County Court System, the Michigan Department of Human Services and with funding provided by Steelcase.

 

Purpose of the Eviction Prevention Program

The EPP is intended to keep those tenants in housing, who truly want to stay in their housing.

The program will not be appropriate for every tenant.

The EPP appears best suited for those on the margin of being homeless due to an emergency situation (as opposed to those tenants chronically behind in rent).

The EPP provides one-time rent assistance and would allow a Landlord to hold a possession and money judgment in abeyance, pending the Tenant’s payment of rent.

The program is, essentially,  intended as a one-time emergency for those on a fixed or low income, who are essentially faced with the difficult choice of either paying an outstanding medical bill, car repair bill, groceries, etc.., or pay their rent.

 

What Property Managers and Landlords need to know about this program:

Landlords – any tenants behind in rent which have been served a summons and complaint for eviction, beginning in January 2018, should be receiving information about the EPP along with the summons and complaint.

Tenants will know that this is a potential resource to keep them in housing.

What you need to know:

1. The program is entirely voluntary. Landlords can choose to opt out.

2. Not every tenant will qualify. A tenant needs to have income to make the next month’s rent payment.

3. The program is geared towards keeping tenants in housing. If a tenant wants out of your property, the program will likely not be the right fit.

 

Why I like this program.

This program provides an opportunity to keep people in housing who are on the verge of being homeless. The fact is, families are experiencing homelessness in Grand Rapids every day.

Practically speaking, the program works for tenants who have the potential to get caught up, who otherwise are good tenants.

The program is an opportunity for Landlords to get paid and to be part of the solution to the affordable housing crisis.

Housing is a community problem. It is encouraging to see the great collaboration between government, private sector, non-profit sector.

 

 

e-mail: Jeshua@dwlawpc.com

Twitter: @JeshuaTLauka

www.dwlawpc.com

Real Estate Investors and Property Managers – Update on the “Bed Bug Bill”

October 31, 2017 1 comment

Today is Halloween so I thought would write on a topic that gives me the creeps…. bed bugs.

 

Courtesy BedBugs.org

Infestations can be an issue that every property manager or owner of residential investment real estate may face.

 

One June 9th Michigan House Bill 4719 was introduced – by Representative Brandt Iden -himself a Developer and Property Manager in South West Michigan. check out the text here – the Bill would amend the Michigan statute governing landlord tenant relationships to include addressing the control of certain pests – including bed bugs.

Recent Update

There has been no noticeable progress, except that the House Fiscal Agency prepared its legislative analysis a few weeks back – you can check it out here

What the Bill seeks to do:

Impose certain duties on landlords regarding bed bugs:

1. Mandates specifically that the Landlord is to keep the rental space free from bed bugs and provide educational literature about bed bug infestations to new tenants.

2. Prohibits Landlords from renting out space that the landlord knows is infested with bedbugs

3. Provides specific requirements for a landlord to respond to a complaint of bed bugs:

  • within 7 days of receiving a complaint, Landlord shall order an inspection for bed bugs;
  • within 7 days of confirming infestation, Landlord shall begin control and schedule inspections of adjoining rental units.

4. Limits damages against Landlord for infestations unless caused by Landlord’s Negligence.

Impose certain duties on tenants regarding bed bugs:

1. Tenant shall inspect for bed bugs when first occupying the space;

2. Tenant shall not move “infested property” into a rental unit

3. Tenant shall notify Landlord within 2 days of notice of infestation.

4. Tenant responsible for damages due to bed bugs caused by Tenant, or guest.

The bill was referred to the Committee on Law and Justice.

Something that the legislative analysis highlights –

“Notwithstanding any other provision of the Landlord-Tenant Act, the landlord and tenant could agree in writing (by hard copy) or electronic mail how responsibility would be assigned for costs resulting from an infestation, including, but not limited to, costs of
control or treatment.”

This would provide some discretion among the parties to craft a resolution.

My thoughts:

Bedbug infestation is a problem. It can cause tenants problems, particularly in lower income housing. As reference, I would highly recommend reading Matthew Desmond’s book “Evicted” It is no secret that Michigan, particularly Kent County, is experiencing an Affordable Housing Crisis.  Further, unhappy tenants who withhold rent can cause landlord problems that end up in court.

This type of bill could provide clarity to landlords and tenants on their reciprocal duties and rights in such circumstances. It could also provide them flexibility to come up with a resolution to get rid of any infestations.

Questions? Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka