Selected Development Issues

This presentation describes some issues which the author has encountered in representing real estate developers and discusses the manner in which those issues were resolved. It should always be remembered that the relative negotiating leverage of the parties involved in a particular transaction is the most important factor influencing whether such issues can be successfully resolved. Even if that leverage is unfavorable in a given situation, however, legal counsel may want to raise the issues for consideration by their clients in order to assure that professional responsibility has been satisfied.


Negotiating Deed of Trust Liability and Carve Out Clauses

This presentation discusses various aspects of provisions in deeds of trust that deal with recourse versus non-recourse liabilities and so-called carve-out provisions imposing liability in an otherwise non-recourse context. A sample non-recourse carve-out provision is attached as Appendix A, but there is a great variety of provisions which lenders and borrowers negotiate on a regular basis. It should be noted that the author represents borrowers and guarantors almost exclusively. Consequently, although an effort has been made to be relatively even-handed in discussing particular issues in this presentation, the remarks inevitably reflect the author’s perspective.