Projects Leigh Kellett Fletcher, Esquire Or When is this Abandoned - - PowerPoint PPT Presentation

Legal Strategies And Considerations For Distressed And Foreclosed Projects

Leigh Kellett Fletcher, Esquire

Or… When is this Abandoned Project a Good Deal, Legally Speaking?

ANY ANY TOWN CENTE TOWN CENTER R - A MIXE A MIXED D USE USE PR PROJECT OJECT

• Any Town Center:
• 500,000 sq. ft. retail (2 story mall and strip)
• 32,000 sq. ft. office
• 80,000 sq. ft. movie theater
• 264 residential dwelling units
• Site Information: 40 acre redevelopment site at

intersection of 2 major roads; part of an existing DRI. Wetlands onsite.

The Fundamentals

• Property Disposition/Acquisition
• Pre- or Post Foreclosure?
• Pre Foreclosure – You take subject to pre-existing debt
• Post Foreclosure – you get the rights that were foreclosed
• Deed-in-Lieu – you get the rights transferred via deed
• In Receivership?
• Owner In Bankruptcy?
• Tax Deeds

Legal Issues Related to Entitlements, Permitting and CDDs

Survey & Title Due Diligence Considerations for distressed and foreclosed property:

• Control of Land/ Access to Property
• Code Enforcement/Liens
• Status of Debt/ Level of Completion of Project
• Competing Claims /Variations in Legal Descriptions

Legal Issues Related to Entitlements, Permitting and CDDs

Permitting Due Diligence Considerations for distressed and foreclosed property:

• Status and control of Comprehensive Plan Designation,

Zoning and Development Approvals

• Status and control of Environmental Permits
• Ability to Satisfy Offsite Mitigation Requirements
• Status of Concurrency
• Environmental Condition
• Remediation Costs (If Required and Incomplete)

Legal Issues Related to Entitlements, Permitting and CDDs

CDD Due Diligence Considerations for distressed and foreclosed property:

• Status of Outstanding Debt & Assessments
• Scope of Improvement Plan (Unfunded improvements?)
• Control of Board of Supervisors
• If Stepping into Developer Shoes – are there funding

agreements in place?

• Does Improvement plan contemplate donation of any

lands?

Legal Issues Related to Entitlements, Permitting and CDDs

Environmental and Site Condition Due Diligence Considerations

• Permit Compliance/ Control of Permits / Timeframes /

Expiration & Ability to Renew

• CERCLA Liability
• Restoration Obligations
• Control of Environmental Preserve Lands (Funding

Obligations)

Receivership

When can a Receiver Be Appointed? What does a Receiver Do?