CRE Radio & TV Podcast Howard F. Kline - Blogger, Author, Attorney & Techie

With so many businesses shuttered and federal financial relief delayed, employees, tenants, landlords and lenders are trying to work things out and survive until business gets back to usual. But for some, federal relief may come too late and negotiations may not work out as well as we all hope.
As part of your arsenal of negotiation and survival tactics it is important to be aware of your rights to seek bankruptcy relief either as a landlord or tenant. Let me be clear.
We are not recommending or encouraging anyone to file for bankruptcy protection.But it is good to know what your Plan B might be if things don't go as planned.
Atlas has shrugged and it is hard to know for certain what is going to happen and how well your plans will go. That's why my panelists and I are going to educate and inform you on your bankruptcy options.
This is the audio only recording of a webinar originally presented on April 16, 2020. The video recording of the webinar which contains additional written material is available on YouTube. To watch the full video replay, click here.
The following are some of the topics that we discuss:
When and Why You Should Be Thinking About Bankruptcy, Canadian bankruptcy perspective if parties cannot negotiate a deal, Applying security deposit to past due rents and requesting tenant to replenish security deposit. Applying letters of credit during eviction moratoriums CARES Act & Covid-19 changes to the bankruptcy code & Canadian equivalents, Do companies come out of bankruptcy? TENANT PERSPECTIVES
US Bankruptcy Chapters Canadian Bankruptcy Law Tenant retention of possession of premises in Chapter Difference between Chapter 11, subchapter 5 and a Chapter 13 Distinction between secured or unsecured creditor Landlord strategies to secure judgment for collection purposes Judgment liens and perfection Landlord issues in the event of a tenant bankruptcy Assumption of Leases Special retail considerations Canadian provisions Lease rejection and corresponding damages Automatic Stay and Relief from the Automatic Stay How do rent moratoriums affect tenant's obligations to pay administrative rent Bankruptcy abuse and In Rem relief for repeated or bad faith bankruptcies Tenant's perspective of a landlord's bankruptcy Retail bankruptcy and how it may differ from other bankruptcies.  
My Panelists are:
Sara Chenetz,Esq, a bankruptcy lawyer and partner in the US national law firm of Perkins Coie. for more information on Sara, click here.
Richard Golubow, Esq. a bankruptcy lawyer and partner in the California law firm of Winthrop Golubow Hollander. For more information on Richard click here
Catherine Francis, Esq., a Canadian bankruptcy lawyer and partner in the Canadian law firm of Minden Gross, LLP. for more information on Catherine, click here.
My name is Howard F. Kline. I am a general business and real estate attorney with a primary focus on commercial landlord tenant matters, including lease negotiations, rent collections and commercial evictions. I also serve as an arbitrator and mediator focusing on commercial landlord tenant disputes.

As businesses begin the process of reopening they are faced with a myriad of legal and operational issues that they have not previously encountered. Taking a cavalier approach to protecting your employees and the public from contracting the Coronavirus is not only morally wrong, it can lead to significant civil or criminal liability.
Were you aware that there have been over 400 Coronavirus Class Action lawsuits filed?
Reopening incorrectly or failing to reasonably protect their employees and the public will certainly bring a firestorm of lawsuits on businesses.
In this webinar, I breakdown and explain:
The potential civil and criminal liability that businesses face, The three key elements to avoid liability What some businesses are doing wrong Should they follow CDC, OSHA or other governmental guidelines? YES, this information will scare you, but it is better to be prepared than hide in the shadows until the Sheriff comes knocking on your door.
To Watch the video of the webinar, click here.

My research has confirmed that California Coronavirus eviction moratorium ordinances in the state of California differ by county and even by city within the same county.
Some cities and counties have imposed eviction moratoriums only on residential property and others on both commercial and residential. Sometimes, even when the moratorium covers both commercial and residential property, the type of property is handled differently.
In some places, the eviction moratorium imposes obligations on the tenant in order to receive the protection of the moratorium and in some places, the landlord is obligated to notify the tenant, in advance of the tenant's moratorium rights. It is confusing.
Compounding the confusion are separate court closures and orders not to issue summons in unlawful detainer matters or for the Sheriff not to do lockouts.
To top it all off, the orders and moratoriums are changing from week-to-week or even, day-to-day.
During this webinar, I will do the best I can to give you up to date eviction moratorium information in many of the California counties and cities and give practical advice on how to protect yourself, whether as a landlord, tenant or property manager.
The video of the webinar has additional material that I included after the webinar. To see the video, go to: https://youtu.be/cBiUz_Hu2s0
Also note that during the webinar I was asked a question that I did not entirely answer accurately.  The most correct answer to the question is that California Code of Civil Procedure Section 1951.4 requires reference to and suggests certain language of the code section to be included in the lease in order to sue for rents as the accrue.
For more information, link to me on LinkedIn.

Time stamped summary of podcast
[00:06:52] How will the pandemic affect the short term future of retail negotiations? 
[00:13:09] New Covid language and increased due diligence,
[00:14:14] Do you think that brick and mortar will continue to shrink?
[00:16:42] Will National tenants be closing their weaker stores?
[00:17:50] What will be the long term effects?
[00:18:32] Is this a good time to push through existing lease negotiations?
[00:19:57] Are lease negotiations going to be more complicated with everyone now adding lease language to mitigate a pandemic risk?
[00:20:41] Are the relevant lease provisions clear and unambiguous?
[00:21:54] Is this a good time to be a retail leasing broker?
[00:22:33] What are some of the specific lease clauses that we'll be changing because of this?
[00:26:05] Will Insurance companies provide pandemic coverage in the future?
[00:26:52] Does Force Majeure apply in most leases?
[00:28:45] Should brokers add forced major language to their LOIs or leave this to the attorneys to duke it out?
[00:33:28] Are the Eminent Domain or Condemnation Clause applicable?
[00:36:56] Co-tenancy provisions may be negotiated differently in the future.
[00:38:08] Do landlords want to get rid of good tenants?
[00:40:08] How does the panel see the effects on the crowded bar business model, given social distancing and potentially less seating capacity?
[00:41:49]  Aren't some restaurant volumes up? 
[00:46:53] Will grocery anchored shopping centers recover faster?
[00:47:17] How long do you think it will be before commercial real estate gets back to where it was in January 202?
[00:49:04] Will there be new categories of retailers as a result of this pandemic?
[00:49:34] How will the Coronavirus effect investment sales overall?
[00:55:52] How are tenants handling the Coronavirus?
[00:57:00] How important is creativity for tenants? What are the tenants doing to help themselves?
[01:01:37]  Landlords want as much information as possible in order to make a risk profile. Tenant's should anticipate what information landlords will want.
[01:03:16] There are a lot of ways tenants can help themselves out.
[01:06:40] How can landlords protect themselves from over aggressive lenders?
[01:11:00] Specific Examples of Retail Landlord Reactions.
[01:13:48] Examples of Tenant Reactions.
 

This is the recording of our April 2, 2020 webinar in which my panelists and I take a deep dive into commercial lease clauses and legal theories  that may provide some tenant  rent relief or otherwise obligate the landlord to make certain accommodations for the tenant.
The clauses and theories that we discussed are:
Force Majeure Eminent Domain/Condemnation Quiet Use & Enjoyment Legal concepts, including: Impossibility of Performance Impracticability of Performance or Frustration of Purposes

In this ever changing world of the Coronavirus, one thing is certain, tenants are going to be seeking rent relief, whether they are legally entitled to it or not.

Even if tenants are not legally entitled to rent relief, landlords may be willing to accommodate such requests seeking to minimize their own exposure and insure the maximum revenue from their property.

In this webinar Howard Kline and our panelists will be discussing landlord and tenant strategies for negotiating tenant rent relief and with an eye towards an economic recovery from this terrible virus.