25 Mar Managing Your Real Estate Team
When buying or selling a commercial or industrial property, it is probable that you will retain a team of three professionals to represent your best interests: a real estate broker, a real estate attorney, and an environmental consultant. Each team member has a different set of rules and guidelines, so, although each one is playing on your team, they may not necessarily consider the others to be teammates. And that can cause problems, delays, or even nullify the deal. One way to keep deals moving forward is to know your players — their skills and limitations — and the specialized rules that govern their behavior.
First Things First: Assigning a Project Manager
To minimize the likelihood of each professional operating at cross purposes to one another, and to maximize the likelihood of closing the deal, a project manager is needed to monitor each professional’s actions; to smoothly integrate findings, actions, and communications; and, ultimately, to facilitate the process. The project manager gathers information and suggestions from the team, synthesizes the information, and funnels it to the owner. The project manager knows that lack of information and indecision are all potential deal-killers. When the client is a major corporation or large-scale real estate developer, the project manager may be a principal, inside corporate counsel, or CFO. But when the client is a smaller company or an individual, project management is normally delegated to an outside attorney. There is no one “right” person or corporate individual to serve this function, but someone should do it.
The Environmental Consultant’s Role
You want to sell. You know that a prospective purchaser is going to perform due diligence prior to closing the deal. The last thing you want as a seller is for the buyer to know more about your property than you do, so you engage the services of an environmental consultant to assess your property’s environmental status. The big-picture question is this: are there any potential areas of concern that will raise a red flag for a purchaser and thus become a negotiating point at best or a deal-breaker at worst? Accordingly, you will want to know the environmental status of your property well before your realtor brings a deal to the table.
The ultimate goal of the environmental consultant is to issue a clean bill of health for the property while conforming to the environmental regulations of the state in which the deal is taking place. In most instances, the first step in the process is due diligence. Most due diligence requires 30 days to complete. More time will be needed if further study or sampling is required. Therefore, as the seller, you should allow at least 60 days for your consultant to perform due diligence. And, of course, if the sampling phase reveals actionable contaminant levels, you should expect any required remediation to take more time.
In New Jersey, when remediation is at hand, or when a property owner must comply with the Industrial Site Recovery Act (ISRA), the consultant is required to enlist a Licensed Site Remediation Professional (LSRP) to review the consultant’s work and issue the Response Action Outcome (The RAO replaced the No Further Action letter and is the closure mechanism issued by LSRPs). To be clear, the LSRP is a second environmental professional that must be retained. They are the responsible party’s (in this context, the Seller’s) de facto case manager, a role formerly filled by a New Jersey Department of Environmental Protection (NJDEP) case manager. To issue an RAO, the LSRP is held to exacting certitude; LSRPs have little room for latitude. Upon reviewing the consultant’s report, the LSRP will return the report to the consultant if he finds even one deficiency, requiring that the deficiency be remedied prior to issuing the RAO. Sellers, therefore, should not necessarily look to the LSRP to advocate on their behalf. Ideas, strategies, and conversations will issue from the consultant with input from the LSRP and other members of the project team.
Your environmental consultant should advocate on your behalf. This means exercising as much creativity as possible while still conforming to the regulations. As the environmental industry has matured and the regulations have changed in accordance with new facts and findings, the degree of latitude available to consultants has diminished. ESA does not claim that opportunities for latitude will be identified on each project, but we do promise to examine potential avenues. And, when we identify an opportunity to make a choice due to latitude, the outcome often reduces time and costs and brings the deal to closure sooner.
The Real Estate Broker’s Role
When the property is free (or nearly free) of environmental issues, you will then actively engage your real estate broker. It may sound glib, but the broker wants to close the deal and collect his commission. And, while fulfilling this objective, a reputable broker strives to foster and maintain long-term client relationships. These relationships are the backbone of every real estate professional’s career. Therefore, brokers will do everything possible to bring the parties together, answer questions, and resolve issues, all the while keeping their eyes on the prize: closing the deal.
The best brokers know their markets. They know how to present and market the property. They know what other properties are available, the going prices, loan options, and other service vendors whom they can call upon to facilitate the process. The best and most successful real estate brokers earn their enviable commissions through a unique blend of knowledge, valuable relationships, and savvy wrought through years of deal-making.
The Attorney’s Role
Attorneys are central to every real estate deal. Think back more than 40 years to a time before environmental regulations. Attorneys helped their clients negotiate deals on a regular basis when environmental issues were not a factor. Most real estate attorneys possessed all the requisite skill and knowledge to negotiate almost any commercial or industrial deal. But this is no longer necessarily true. And, regardless of your attorney’s relative degree of environmental savvy, each attorney has a mission that is anchored by a few simple principles. First and foremost, they must identify and mitigate their client’s legal risk. When negotiating a contract, they should negotiate a deal with terms that favor the client to the fullest extent practicable. And, they must ensure compliance with applicable laws and regulations. While your attorney knows that you long to close the deal, they may advise you to not close the deal if they feel that inordinate risk exists. Unresolved environmental issues are often viewed as inordinate risk. That’s a powerful reason to resolve those issues early in the sale process.
While the project manager is busy managing the team, perhaps their greatest challenge is to manage time. The importance of timely, informed decisions cannot be overemphasized. As stated earlier, the project manager gathers, distills, and synthesizes information, ideas, and suggestions so the client can make informed and timely decisions. A deal moving forward tends to keep moving forward. Deals at rest tend to die.
Environmental issues scare people and routinely ruin deals, especially among those clients who are not environmentally sophisticated. Suppose a seller puts a commercial property on the market for $1.5 million and then learns of an environmental issue. If the seller and their attorney are fearful or misinformed, they may decide to let the buyer handle the cleanup and reduce the price of the property far below the cost of remediation.
Deals can be lost when sellers fail to perform due diligence. And deals often blow up when buyers discover environmental problems via the due diligence process that had been previously unknown to the seller. At this point, the broker scrambles and the attorney may act defensively instead of negotiating terms from a position of strength. This is a precarious scenario for any seller.
Determine who will manage the deal process. Large corporations and developers employ CFOs, and they often have in-house counsel. Either individual could assume the role of project manager. Just be certain that the selected individual is familiar with real estate issues. Do they know what it takes to bring a deal to fruition? Do they have clear and ready access to the property owner? Decisions must be made in a timely fashion.
Stay well-informed throughout the process. Some real estate deals are complex and have a bewildering array of moving parts. Property owners or buyers who have to address environmental issues are relegated to use a disparate collection of professionals to organize those moving parts. Recognize that these professionals may be working at cross purposes and that it is the project manager that must coordinate those efforts.
Explore using “Other People’s Money” (OPM). Why use your own money to fund remediation? ESA suggests using OPM to pay for cleanups. There are three common sources of OPM that can pay all or part of your environmental costs: old insurance policies, tax appeals based upon a diminution of value due to environmental impacts, and state loans and grants. See AskESA.com/2012/09/other-peoples-money for more information.
Most real estate deals occur among companies too small to have CFOs or in-house counsel. And most of the sellers that ESA works with retain outside attorneys to whom they delegate project manager authority. Attorneys who know environmental and real estate law do the best job of representation and contract negotiation. Delegate authority to an outside attorney who will ultimately negotiate the contract of sale and quantify/qualify the various forms and degrees of legal risk posed by the deal. Your attorney will distill, interpret, and present information so you can make risk-based business decisions.
If you have a real estate attorney who isn’t well-versed in environmental law, retain an environmental attorney as co-counsel to help your real estate attorney strategize and negotiate those parts of the deal that address complex environmental issues. Again, from ESA’s perspective, many environmental attorneys also understand real estate and are involved in such deals on a continual basis. Well-versed attorneys will funnel information toward the seller. Armed with this collection of information, the seller can then make educated business decisions.
Know that this real estate team dynamic exists regardless of the party being represented: seller, buyer, landlord, or tenant. And, regardless of the nature of the deal, all parties must communicate via a project manager who will coordinate their efforts.
Ultimately, it is better for the deal and the seller if environmental issues are resolved early in the process. By doing so, the deal could become routine and can even resemble deals that occurred in the days before environmental concerns became de rigueur.
Project delays kill deals. Know what constitutes normal timing for a given task or issue. The project manager should shepherd the team as needed to keep the deal moving forward. Knowing the focus of the team members enables any project manager to maximize their efforts.
This topic is very complicated, and many topics and scenarios were, by choice, omitted. ESA encourages questions or comments on this and any other environmental issues. Contact the author at 732.469.8888 x201, or send an email to sfauer@AskESA.com.
A Note of Thanks
Three outside experts graciously reviewed this article and provided valuable feedback to ESA. We wish to thank George P. Molloy of GM Realty Advisors, Inc. for clarifying the commercial realtor’s perspective. Thanks to Peter Visceglia, president of Federal Business Centers, who provided valuable insight from the property owner’s perspective. And, finally, our gratitude to Michelle A. Schaap, Esq. of Wolff & Samson, who offered feedback reflecting her diverse experience as both corporate counsel and private attorney.
Ultimately, the opinions expressed in this article are those of the author and ESA only.