Landlord & Tenant
May 11, 2004
The most recent rulings affecting you and your practice.
Index
May 11, 2004
Everything that's contained in this issue in an easy-to-find format.
Real Estate Investment Trusts: A Growing Trend
May 11, 2004
REITs were invented in the US by legislation enacted in 1960 to enable small investors to make equity investments in large-scale commercial real estate in the same way they invested in large corporations in other industries. This chapter examines the requirements than an entity must satisfy to qualify as a REIT, the development of REITS, and the advantages of REITs.
Is It a True Lease or a Loan?
May 01, 2004
<i>Part One of a Two-Part Series.</i>Anyone who has been in the leasing business for much time at all understands that a transaction that the parties describe as a "lease" can be either a "true lease" where the lessor owns the leased equipment or a "loan" which results in the lessee being the owner and the lessor having merely a security interest. The latter is commonly referred to as "disguised security interests" or "leases intended as security" or "financing leases." Many people also have a general understanding of the distinction between the two, and most of those reading this article have heard one person or another proclaim the bright-line rule that a lease with a dollar purchase option is a loan and a lease with a fair market value purchase option is a true lease.
True Lease or Secured Financing?
April 26, 2004
In the Chapter 11 context, it is common for interested parties to challenge the characterization of a Chapter 11 debtor's obligations under an agreement styled as a lease. A Bankruptcy Court's determination as to whether a transaction is a "true" lease or a secured financing can have far-reaching consequences on the administration of a debtor's Chapter 11 case and the respective rights of each party to the agreement. As the recent decision by the Third Circuit Court of Appeals in <i>Duke Energy Royal, LLC v. Pillowtex Corp. (In re Pillowtex, Inc.)</i>, 349 F.3d 711 (3d Cir. 2003) illustrates, when faced with the question of whether a transaction constitutes a "true" lease or a secured financing, bankruptcy courts will look beyond the form to the substance of the parties' agreement.
The Leasing Hotline
April 23, 2004
Highlights of the latest commercial leasing cases from around the country.
Avoid Oversights in Lease Amendments
April 23, 2004
The following scenario frequently occurs: A multi-tenant office building landlord requests its counsel to take a quick look at a proposed two-paragraph lease amendment that the landlord drafted itself. The landlord explains that the tenant has agreed to extend the lease term and establish a new base rental rate for the extended term. Very simple and straightforward, correct? In reality, if the landlord and tenant had signed the two-paragraph lease amendment, they would have made some potentially costly errors, overlooked several issues and bypassed an opportunity to capture more comprehensive provisions that, at a minimum, should have been considered for inclusion. This article will help attorneys avoid some common oversights when working on lease amendments and identify some opportunities that should be assessed during the amendment-drafting phase.
Issues Requiring Attention in Lien Waiver, Access Clause
April 23, 2004
The first part of this article described the contents of the lien waiver and access agreement provision required by asset-based lenders. The conclusion discusses the major issues to be covered in the provision.
