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Stay in Touch with REA-lity

BY Katherine Casale MacNally
February 26, 2014

In a perfect world, every developer of a project would know exactly how it would be used, both initially and in the future, and know all parties that would be involved with the project, including future developers of adjacent parcels and all tenants. In reality, parties and uses change over time, and multi-phase and mixed-use projects are becoming increasingly more common. It is not always easy to anticipate the necessity of an REA at the beginning of a development project, but a developer should at least leave open all options when drafting leases. This article examines the issues that arise when there is no REA at the time a project is being leased, but there is a realistic possibility that an REA will be required as and when portions of the property are conveyed as separate parcels.

What Is an REA?

An REA permits a multiple-parcel property to be tied together as a cohesive project when some of the parcels are conveyed to third parties. Conveyances may be made for a variety of reasons, including recovering development costs (and, hopefully, additional returns), and in a number of contexts, including: 1) a multi-phase development; 2) financing of less than the entire project; 3) adding other uses (including different ownership for each use because of specialization of developers); and 4) marketing to an occupant that wants to own its own parcel. An REA can, for example, grant easements, permit or require the construction of improvements, standardize or restrict operations and uses, provide for site plan and design controls, and set forth cost-sharing protocols.

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