COVID-19: How Wendel Rosen’s Real Estate Litigation Group Can Assist
Wendel Rosen’s Real Estate Litigation Group knows real estate. Led by Chuck Hansen, who has for decades been recognized as one of California’s foremost real property experts, our team has the expertise and experience necessary to help clients resolve virtually any real estate problem arising from the COVID-19 crisis, including matters relating to purchase and sales transactions, real estate secured financing, commercial leases, title and escrow, and more. If you have a real estate problem, we can help you resolve it.
Commercial Lease Matters
With many businesses closing or severely curtailing operations under “Shelter in Place” Orders, COVID-19 has created an unprecedented crisis for commercial landlords and tenants. Our attorneys are available to guide clients through the maze of business and legal issues now confronting commercial landlords and tenants, including:
- Whether governmental closure orders, or related circumstances, excuse or otherwise limit the tenant’s obligation to pay rent under doctrines such as force majeure, impossibility, and frustration of purpose.
- Potential landlord remedies and constructive strategies for approaching and resolving disputes over the tenant’s rental obligations, including forbearance, deferral, and lease extensions.
- Whether loan documents restrict the landlord’s ability to negotiate tenant accommodations or otherwise impact the landlord’s approach.
- Negotiating temporary accommodations without effecting a broader waiver of rights.
- Early surrender or termination of the lease and the landlord’s duty (if any) to mitigate damages.
- The scope and impact of governmental and judicial restrictions and moratoria on evictions.
Mortgage/Trust Deed Financing
With the COVID-19 crisis cutting many property owners’ cash flows, a wave of defaults may well be on the horizon. Wendel Rosen is a recognized leader in the area of real-estate secured financing. Our attorneys have decades of experience helping clients negotiate the maze of California law governing mortgage and trust deed financing, and stand ready to offer advice and representation on current issues, including:
- Loan defaults resulting from governmental closure orders or related circumstances: Strategies and tactics for dealing with default, including negotiated forbearance or loan forgiveness.
- Government-imposed foreclosure moratoria: Applicability and impact in particular cases.
- Court closures and judicial and non-judicial foreclosures: Is judicial relief available, and if not, what are the consequences and potential workarounds?
- Novel foreclosure auction issues, including:
- Compliance with statutory requirements in light of “Social Distancing” orders.
- Bidding strategies in a time of profound market uncertainty.
- “Fair Value” anti-deficiency protections in a broken market place.
- Guarantor liability for COVID-19 related loan defaults.
Purchase and Sale Transactions
The COVID-19 crisis will impact many real estate transactions that were pending prior to issuance of “Shelter in Place” orders and related events. Likewise, the crisis creates an entirely new set of issues for sellers and buyers of real property. Issues we can assist with include:
- Nonperformance and/or rescission under theories of nondisclosure, force majeure, impossibility, and frustration of purpose.
- Buyer efforts to renegotiate terms based on changed circumstances.
- Inspections and contingencies in a time of pandemic.
- The risks of selling and buying based on virtual inspections (and how to mitigate those risks).
- The impact of Shelter in Place and Social Distancing on real estate closings.
- Then things go wrong: The availability of judicial remedies in light of court closures.
- Alternative or “self-help” remedies – strategies and tactics for resolving problems creatively.
Title, Title Insurance, and Escrows
While escrow and title companies are in some instances exempted from “Shelter in Place” orders as essential businesses, the COVID-19 crisis raises a host of issues relative to title, title insurance, and escrow, including:
- Online title searches – advantages and limitations.
- Escrow holdbacks: Creative solutions to new problems.
- Increased cybercrime risk in “All Remote” escrows. Potential liabilities, and how to mitigate them.
- The impact of COVID-19 on title insurance claims handling and claim handling time limits.
- Arbitration as an alternative in an era of court closures and increasing backlogs.
Land Use and Development
As local governments and courts continue to adapt to Shelter in Place orders, our lawyers are prepared to assist processing land use entitlement applications from start to finish, and to engage in litigation where necessary to achieve client goals. Issues unique to the COVID-19 crisis include the following:
- Working with local government officials to ensure entitlement processing is moving forward.
- Appearing at virtual public hearings and navigating due process issues.
- Addressing issues relating to interpretation of local government orders regarding continuation of construction.
- Assisting clients with extending existing entitlements impacted by Shelter in Place orders.
- Filing and defending land use litigation disputes.
To learn more about our capabilities and attorneys, visit the Real Estate Litigation page.