10 Things Every Buyer Needs – To Close A Commercial Real Estate Loan

For nearly 30 years, I have represented borrowers and lenders in commercial real estate transactions. During this time it has become apparent that many Buyers do not have a clear understanding of what is required to document a commercial real estate loan. Unless the basics are understood, the likelihood of success in closing a commercial real estate transaction is greatly reduced.

Throughout the process of negotiating the sale contract, all parties must keep their eye on what the Buyer’s lender will reasonably require as a condition to financing the purchase. This may not be what the parties want to focus on, but if this aspect of the transaction is ignored, the deal may not close at all.

Sellers and their agents often express the attitude that the Buyer’s financing is the Buyer’s problem, not theirs. Perhaps, but facilitating Buyer’s financing should certainly be of interest to Sellers. How many sale transactions will close if the Buyer cannot get financing?

This is not to suggest that Sellers should intrude upon the relationship between the Buyer and its lender, or become actively involved in obtaining Buyer’s financing. It does mean, however, that the Seller should understand what information concerning the property the Buyer will need to produce to its lender to obtain financing, and that Seller should be prepared to fully cooperate with the Buyer in all reasonable respects to produce that information.

Basic Lending Criteria

Lenders actively involved in making loans secured by commercial real estate typically have the same or similar documentation requirements. Unless these requirements can be satisfied, the loan will not be funded. If the loan is not funded, the sale transaction will not likely close.

For Lenders, the object, always, is to establish two basic lending criteria:

1. The ability of the borrower to repay the loan; and

2. The ability of the lender to recover the full amount of the loan, including outstanding principal, accrued and unpaid interest, and all reasonable costs of collection, in the event the borrower fails to repay the loan.

In nearly every loan of every type, these two lending criteria form the basis of the lender’s willingness to make the loan. Virtually all documentation in the loan closing process points to satisfying these two criteria. There are other legal requirements and regulations requiring lender compliance, but these two basic lending criteria represent, for the lender, what the loan closing process seeks to establish. They are also a primary focus of bank regulators, such as the FDIC, in verifying that the lender is following safe and sound lending practices.

Few lenders engaged in commercial real estate lending are interested in making loans without collateral sufficient to assure repayment of the entire loan, including outstanding principal, accrued and unpaid interest, and all reasonable costs of collection, even where the borrower’s independent ability to repay is substantial. As we have seen time and again, changes in economic conditions, whether occurring from ordinary economic cycles, changes in technology, natural disasters, divorce, death, and even terrorist attack or war, can change the “ability” of a borrower to pay. Prudent lending practices require adequate security for any loan of substance.

Documenting The Loan

There is no magic to documenting a commercial real estate loan. There are issues to resolve and documents to draft, but all can be managed efficiently and effectively if all parties to the transaction recognize the legitimate needs of the lender and plan the transaction and the contract requirements with a view toward satisfying those needs within the framework of the sale transaction.

While the credit decision to issue a loan commitment focuses primarily on the ability of the borrower to repay the loan; the loan closing process focuses primarily on verification and documentation of the second stated criteria: confirmation that the collateral is sufficient to assure repayment of the loan, including all principal, accrued and unpaid interest, late fees, attorneys fees and other costs of collection, in the event the borrower fails to voluntarily repay the loan.

With this in mind, most commercial real estate lenders approach commercial real estate closings by viewing themselves as potential “back-up buyers”. They are always testing their collateral position against the possibility that the Buyer/Borrower will default, with the lender being forced to foreclose and become the owner of the property. Their documentation requirements are designed to place the lender, after foreclosure, in as good a position as they would require at closing if they were a sophisticated direct buyer of the property; with the expectation that the lender may need to sell the property to a future sophisticated buyer to recover repayment of their loan.

Top 10 Lender Deliveries

In documenting a commercial real estate loan, the parties must recognize that virtually all commercial real estate lenders will require, among other things, delivery of the following “property documents”:

1. Operating Statements for the past 3 years reflecting income and expenses of operations, including cost and timing of scheduled capital improvements;

2. Certified copies of all Leases;

3. A Certified Rent Roll as of the date of the Purchase Contract, and again as of a date within 2 or 3 days prior to closing;

4. Estoppel Certificates signed by each tenant (or, typically, tenants representing 90% of the leased GLA in the project) dated within 15 days prior to closing;

5. Subordination, Non-Disturbance and Attornment (“SNDA”) Agreements signed by each tenant;

6. An ALTA lender’s title insurance policy with required endorsements, including, among others, an ALTA 3.1 Zoning Endorsement (modified to include parking), ALTA Endorsement No. 4 (Contiguity Endorsement insuring the mortgaged property constitutes a single parcel with no gaps or gores), and an Access Endorsement (insuring that the mortgaged property has access to public streets and ways for vehicular and pedestrian traffic);

7. Copies of all documents of record which are to remain as encumbrances following closing, including all easements, restrictions, party wall agreements and other similar items;

8. A current Plat of Survey prepared in accordance with 2011 Minimum Standard Detail for ALTA/ACSM Land Title Surveys, certified to the lender, Buyer and the title insurer;

9. A satisfactory Environmental Site Assessment Report (Phase I Audit) and, if appropriate under the circumstances, a Phase 2 Audit, to demonstrate the property is not burdened with any recognized environmental defect; and

10. A Site Improvements Inspection Report to evaluate the structural integrity of improvements.

To be sure, there will be other requirements and deliveries the Buyer will be expected to satisfy as a condition to obtaining funding of the purchase money loan, but the items listed above are virtually universal. If the parties do not draft the purchase contract to accommodate timely delivery of these items to lender, the chances of closing the transaction are greatly reduced.

Planning for Closing Costs

The closing process for commercial real estate transactions can be expensive. In addition to drafting the Purchase Contract to accommodate the documentary requirements of the Buyer’s lender, the Buyer and his advisors need to consider and adequately plan for the high cost of bringing a commercial real estate transaction from contract to closing.

If competent Buyer’s counsel and competent lender’s counsel work together, each understanding what is required to be done to get the transaction closed, the cost of closing can be kept to a minimum, though it will undoubtedly remain substantial. It is not unusual for closing costs for a commercial real estate transaction with even typical closing issues to run thousands of dollars. Buyers must understand this and be prepared to accept it as a cost of doing business.

Sophisticated Buyers understand the costs involved in documenting and closing a commercial real estate transaction and factor them into the overall cost of the transaction, just as they do costs such as the agreed upon purchase price, real estate brokerage commissions, loan brokerage fees, loan commitment fees and the like.

Closing costs can constitute significant transaction expenses and must be factored into the Buyer’s business decision-making process in determining whether to proceed with a commercial real estate transaction. They are inescapable expenditures that add to Buyer’s cost of acquiring commercial real estate. They must be taken into account to determine the “true purchase price” to be paid by the Buyer to acquire any given project and to accurately calculate the anticipated yield on investment.

Some closing costs may be shifted to the Seller through custom or effective contract negotiation, but many will unavoidably fall on the Buyer. These can easily total tens of thousands of dollars in an even moderately sized commercial real estate transaction in the $1,000,000 to $5,000,000 price range.

Costs often overlooked, but ever present, include title insurance with required lender endorsements, an ALTA Survey, environmental audit(s), a Site Improvements Inspection Report and, somewhat surprisingly, Buyers attorney’s fees.

For reasons that escape me, inexperienced Buyers of commercial real estate, and even some experienced Buyers, nearly always underestimate attorneys fees required in any given transaction. This is not because they are unpredictable, since the combined fees a Buyer must pay to its own attorney and to the Lender’s attorney typically aggregate around 1% of the Purchase Price. Perhaps it stems from wishful thinking associated with the customarily low attorneys fees charged by attorneys handling residential real estate closings. In reality, the level of sophistication and the amount of specialized work required to fully investigate and document a transaction for a Buyer of commercial real estate makes comparisons with residential real estate transactions inappropriate. Sophisticated commercial real estate investors understand this. Less sophisticated commercial real estate buyers must learn how to properly budget this cost.

Conclusion

Concluding negotiations for the sale/purchase of a substantial commercial real estate project is a thrilling experience but, until the transaction closes, it is only ink on paper. To get to closing, the contract must anticipate the documentation the Buyer will be required to deliver to its lender to obtain purchase money financing. The Buyer must also be aware of the substantial costs to be incurred in preparing for closing so that Buyer may reasonably plan its cash requirements for closing. With a clear understanding of what is required, and advanced planning to satisfy those requirements, the likelihood of successfully closing will be greatly enhanced.

Commercial Real Estate Investing Vs Residential

Is commercial real estate investing a better investment than investing in residential properties? Now, we all know that real estate in general is a great investment vehicle and both residential and commercial properties can be good investments. Either avenue can have a tremendous effect on your net worth, but most people think only of residential property when they think about investing in real estate. While this is certainly the most viable route for most people, commercial property can offer additional benefits the residential model can not offer.

Three Reasons Commercial Investments are better than Residential Deals:

1.) Commercial Real Estate Gives You More Access to More Capital

It has been my experience that it is somewhat easier to raise larger amounts of capital (under $3M) for a commercial deal than it is to raise $150,000 for a residential deal. As a residential investor your access to capital is limited primarily to traditional financing, hard money lenders, and private money from individual investors. If you are unable to raise capital from one of these three avenues, then you are forced to acquire property in more of a creative manner with owner financing, subject to strategies, lease options, etc. This in itself is not a bad thing, but unfortunately you will have to walk away from some good deals that can’t be acquired with creative financing techniques.

In commercial real estate it is more common for investors to pool their capital together and syndicate deals, you will also find that smaller private equity firms and finance companies are more inclined to do joint venture projects and provide the needed capital to complete the deal if the deal makes sense. So as a commercial investor you have the potential to raise capital for a deal from the same sources as residential projects such as: Traditional Financing and Hard Money, but additionally you could access capital through smaller private equity firms, hedge funds, private REITs, investment groups, and the list goes on.

There also seems to be a sense of intrigue and prestige when it comes to investing in commercial deals. Perhaps, due to the state of the current commercial market, it appears investors are trending more toward investing in commercial projects.

2.) Commercial Real Estate is Less Competitive

When you think about it from a marketing perspective, most investors target residential property owners, thus making the residential market more competitive. In many arenas, from industry news sources, the World Wide Web, all the “We Buy Houses” signs virtually on every street corner, there are a lot of marketing tactics targeting residential property owners. If you take the same marketing strategies discussed and apply them to commercial real estate, you will probably find you are the ONLY person contacting these commercial property owners in regards to selling their property. Most commercial properties under $5 million tend to be too large for most residential investors, yet too small for most institutional investors.

3.) Commercial Real Estate allows for “Forced” Appreciation

Residential properties are typically valued based on other comparable properties that have sold in the area and are similar in features. If the “comps” for a 3 bedroom/2 bathroom house in a particular neighborhood is roughly $100,000, then your property is probably going to be worth $100,000. It doesn’t matter too much if your target property has additional features, or if your house is getting $900 a month in rent as opposed to the house down the street that is only renting for $700 a month. All things considered, your property will still be valued pretty close to the “comps” of the area.

However, in commercial real estate, the valuation of a property is based on the revenue that the property generates. Now, commercial properties are still subject to the “comps” of the area as it pertains to “How” that revenue is valued in terms of capitalization rates. But, the overall premise is that, the more revenue a property generates, the more that property is worth.

So, in order to “force” the appreciation of your commercial property, you need to find additional ways to increase the revenue that the property generates. A small increase in revenue can increase the value of a property significantly depending on the “Cap Rates” in the area for that type of commercial real estate. Unfortunately, with residential real estate this isn’t an option as you really can’t force appreciation. Your property will be valued in the general range of the market comps.

So, as you can now see, commercial real estate offers many benefits over residential investments in addition to higher returns on your investment.

Now of course there are disadvantages with any investment vehicle, commercial real estate included. However, consider the following when choosing between residential or commercial investing to create your passive income stream;

1) The building qualifies for the loan; Not the borrower

2) The building pays back the loan; Not the borrower

3) Others are expected to manage the building; Not the borrower

4) Income determines the value of the property; Not the comps

5) Cap Rate measures demand for the property; Not the comps.

To sum it up: a commercial property’s value is eternally tied to the income the property produces and overall demand for the property’s services. Therefore, based on the property’s location and the highest and best utilization, commercial real estate investments can certainly create a larger return on your investment over time verses residential investments. Perhaps, this is even more true in our current market cycle.

Becoming a Commercial Real Estate Broker

The Commercial Real Estate Industry touches virtually every aspect of business in the United States and most of the free world. Very few companies can grow without acquiring more land or additional office space, patients can’t use the services of a hospital unless it’s constructed and consumers can’t shop at a Walmart without the development of Real Property.

Commercial Real Estate encompasses all aspects of sales, leasing, management, investment in or improvement of retail property, investment property, farmland, businesses, industries, medical facilities and dozens of other types of property. Our job in the industry is to assist in the lease, management or sales of property, and to advise our clients of their best courses of action when deciding how to invest in or improve real property or a commercial asset.

You will work directly with industry leaders, community leaders, government officials, lawyers, zoning officers, accountants, mortgage companies, banks, title companies, appraisers, utility companies and everyone in between to put together sales or develop property to its full potential for a client. While you can’t make decisions for our clients, you can assist them in making better informed decisions, and you can help our clients to understand what the highest and best use may be for a particular property, or what type of investment vehicle might be best for your client.

You will work with property owners who may want to sell a property, lease a property, have a property managed or determine what use might be better for the property than the current use. You will work with users of properties to find the best location for their business or investment, to determine if it’s better for the user to lease a property or purchase and to understand the tax implications of their decisions. Additionally, You will work with investors to determine which real estate venture might be their best investment to meet their particular goals and needs.

Commercial real estate agents and brokers work with individuals, investors, organizations and corporations to develop property to its highest potential. Their careers include many specializations. Some commercial associates specialize in particular types of property, such as office property, develop-able farmland or even amusement parks. Other commercial associates specialize in particular forms of consulting work for Real Estate Investment Trusts (REITs), insurance companies or utility companies. Still others work in specialized areas such as resort management or assist government agencies with the redevelopment of industrial sites or reclamation of land.

Commercial Real Estate is an exciting and rewarding field of study and can lead to dozens of different career opportunities. Whether someone is starting their first small business, developing a parcel of land, or considering an investment in real estate rather than an investment in a mutual fund or money market, the understanding of commercial real estate is fundamental to their decisions.

To begin your career in this sector of the industry you’ll need to understand exactly what you’re selling, how it is priced, how it is financed and what legal documents must be used to convey the sale or lease. In other words, what are the responsibilities of a commercial real estate broker. Let’s take a look at the key elements necessary to be successful in commercial real estate.

You will need to examine the diverse forms that commercial property takes and the important terms used by those in the field to explain and understand a type of property. Next you will need to explore the different methods of determining value in the eyes of property users, investors, real estate professionals and appraisers. You will also need to learn how commercial real estate can be financed and how it may be leased. There is also a need to perform an examination of the legal documents including listing contracts, sales agreements and lease contracts.

Your responsibilities as a commercial real estate professional include:

For Sellers or Property Owners:

  • Hold or Sell Analysis – Analyze the market to determine what course of action is best for a property owner. Is it better to hold onto the property longer, or would an owner be better suited selling the commercial property? This analysis may include projections of cash flows, and determination of internal rate of return.
  • Property Management – Assist the owner by leasing and / or managing the day to day situations that arise in any real estate investment. Management may include suggestions of how to create more value in the property. 3 story multi-tenant Office Building with central common atrium.
  • Property Leasing – Finding tenants for a property owner’s commercial real estate. This may include advice on creating a niche for the property, or ways to attract more solid long term tenants.
  • Property Sale or Marketing – Determining the best course of action in order to maximize the sales price on a property and find the best possible buyer.

For Buyers, Tenants or Investors:

  • Investment Analysis – Provide an investor or buyer with comparisons of various properties or types of property and their cash flows or investment returns in order to determine what situation may be best for the investor or buyer.
  • Site Selection – Assist the investor or buyer with locating a site that meets the client’s needs. Assist with demographic data to support the client’s business or investment goals. An agent may also be required to assist with determining the site’s suitability based on zoning regulations, environmental conditions and financing considerations.
  • Cash Flow Analysis / Return on Investment – What kind of return can an investor expect on a particular real estate investment? Agents provide projections of potential future income and analysis of potential return on the property.

For both Sellers / Owners and Buyers / Investors:

  • Property or Business Valuations – Any property owner wants to know what their property is worth to a buyer and what the highest sales price or lease price is possible in the current market. Buyers or Investors want to know what a fair price may be for the same property or business, and will want to know what the best investment may be at this point in time.
  • Feasibility Studies – Conduct a market study with the help of Real Estate Appraisers and engineers to determine the highest and best use of a property, or forecast a project’s likelihood of success.
  • Exchange Opportunities – Tax-deferral benefits may make it worthwhile to exchange the property, or use a 1031 deferred exchange.

Commercial Real Estate Professionals can be rewarded for their quality work and adherence to ethical standards. Learning the fundamental methods and tools used are critical to the success of both the professional and their clients.