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Yahne Law PC
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Real Estate

“Leave this world a little better than you found it.” Robert Stephenson Smyth Baden-Powell (1945)

Scott consults with clients.

Scott Yahne, a gardener at heart, enjoys nothing more than bringing real estate developments to fruition, whether it be:

Scott Yahne has extensive experience handling transactions involving the selection, acquisition, closing, use, zoning, development, management, leasing and conveyance of land for a broad range of clients, including developers, investors and landowners. Yahne.Law will negotiate and draft documents for residential and commercial real estate purchases, exchanges and loan transactions, help the client analyze the feasibility of development; and prepare, file and process all required governmental permit applications. Upon completion of the project, Yahne.Law will assist in the negotiating and documenting of brokerage and management arrangements, sales, and leases. With respect to real estate litigation, Yahne.Law possesses experienced in the areas of tax sales, condemnation, land acquisitions, warranties, mechanics' liens, and construction defects.

Commercial Transactions

Broadly defined, the term “commercial real estate” can be used to refer to any dealing with real property in a business context. It could involve leasing out office space, owning an apartment complex, or selling real property along with and as part of the sale of a business. It could even involve residential properties like apartment complexes or rental houses being held for business or income-producing purposes. Unless the property is a residence where the homeowner is living, you are probably dealing with commercial real estate.

While many of the concepts are the same, there can be huge differences between commercial and residential real estate. Commercial real estate transactions can be far more diverse and wide-ranging than selling homes. Any real estate deal has its share of risks, and problems can arise that you could never possibly foresee. In general, however, the risk and potential liability exposure that you face on a commercial real estate deal can be much greater than when you buy a house. Depending on the nature of the business, commercial property may have all kinds of liens and title problems. There may be greater concerns about hazardous materials or zoning issues. And there will always be questions about the suitability of the property’s location for your business needs.

Furthermore, in many instances, you are not afforded the same consumer protections on a commercial real estate deal that may be available when you purchase a residence. In some states, for example, residential homebuyers are given greater protections against abusive lending practices than are business owners. Likewise, there are mandatory disclosures required in residential real estate matters that may or may not be required in a commercial transaction. Regardless of whether you’re buying a home or a piece of investment property, there will always be risks involved. Your goal should be to lessen these risks as much as you can. Examples of potential problems that oftentimes lead to legal disputes include:

  • Defects in title
  • Debt service and lender requirements
  • Mechanics liens
  • Zoning and land use problems
  • Market fluctuations
  • Hazardous waste and environmental contamination

Real property interests are usually conveyed by a deed. In order to track how property changes hands, every state has a public record system where real property deeds are recorded, becoming a part of the public record system for everyone to see. In theory, this is a great system for keeping track of who owns what, but deeds are sometimes not recorded. Sometimes people sell or transfer partial interests in property. Lenders make loans against properties and record mortgages or deeds of trust that become liens that are of public record. Easements given to cross over or use property may or may not be of record. A judgment against a person can be recorded and become a lien against any real property that person owns, even without his consent. All these things can become a lien against title. You may not be buying everything you though you were buying, because someone else may have a prior claim that you did not know about.

A big concern for a business is to make sure not only that property used in the business is properly zoned, but also that the zoning of nearby or adjacent properties is not going to be a problem. Believe it or not, many people fail in new businesses because they don’t investigate the land use and zoning issues carefully enough. And even if you do your homework, issues can come up down the road if governmental agencies or neighbors try to change the zoning on your property to limit your use of it.

The biggest potential concerns to owning business property, though, are hazardous waste or environmental cleanup problems. Property owners are the ones who have primary responsibility for fixing such problems, even if the current property owner did not cause them. These problems may not be obvious or apparent to the naked eye, and could arise from anything ranging from an underground storage tank to an old garbage dump. If you’re in the chain of title to contaminated property (meaning that at some point you held an ownership interest in that property), you’re potentially responsible for paying for the clean-up. The costs for an environmental cleanup operation can run into the millions of dollars.

There are many issues that can arise with respect to how you take title to property, and especially so in a commercial context. If you take title as an individual, you may be exposing yourself to potential liability exposure that you might want to try to avoid or at least minimize. You take title through a business corporation, but doing this could be disaster from a tax standpoint point. Sometimes, there may be other alternatives such as forming a limited liability company that you would own and control that, in turn, could lease the property to your business entity. There are no universal rules of thumb with respect to how to take title. It’s always advisable to seek professional advice, including your lawyer and CPA, to assist you in making a smart decision.

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Residential Transactions

The purchase of a home is the largest investment most people will ever make. The contract to buy or sell a home, often called a purchase offer or purchase agreement, may be the largest money contract you will ever sign. As a result, a prospective homebuyer or seller should take all precautions possible to make sure that the deal concludes smoothly and correctly. Although many people close without the services of an attorney, there is an inherent risk to doing so. As with a trip to your family doctor, a little “preventative law” can stave off many a disastrous affliction. Unfortunately, once the sale is closed, undoing the damage that has been done becomes exceedingly difficult, if not impossible.

If you have a real estate agent, he or she will sometimes prepare the purchase agreement using a preprinted form. This form may not be sufficient to meet your needs and expectations. An essential clause of any purchase agreement is an inspection clause. Unfortunately, inspection clauses in preprinted forms often times simply do not afford adequate protection. You should be mindful of the fact that the purchase agreement presented by the real estate agent may not necessarily be prepared with your best interests in mind, because the ultimate interest of many real estate agents is to close the deal and earn a commission. Because the purchase agreement will determine virtually every term of your agreement to buy or sell, you should be certain that you are fully protected. Before signing any purchase agreement, seeking legal counsel is a wise decision.

Once the purchase agreement has been finalized, we can describe the particular real estate closing process likely to be followed in your closing. We will discuss the mortgage process and the timetable for the mortgage commitment, and when and how the deal will be closed. If necessary, we will assist you in removing exceptions to the title policy. We will help you explore the many different financing options for real estate sales including buyer financed mortgages, assumable mortgages, conventional mortgages insured with PMI, and various kinds of government guaranteed mortgage programs. We will review with you all of the costs and expenses of the closing including real estate commissions, mortgage closing costs, abstract fees, title insurance, survey fees and legal expense, and assure that these expenses are properly assessed. We will review surveys, title commitments, and deeds to ensure that you receive your real estate free and clear of encumbrances.

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Like Kind Exchanges of Real Estate: “1031 exchange”

A “1031 exchange” refers to a method of deferring tax on the sale of an interest in real property allowed under section 1031 of the Internal Revenue Code. In brief, it allows a seller to defer tax on a gain that would otherwise be realized on a sale of property if the proceeds from the sale were reinvested in like-kind property. It’s quite common for a 1031 exchange to be involved in some manner in a commercial real estate transaction.

A seller must contractually arrange to convey his or her interest in the property being sold in exchange for receiving an interest in another piece of commercial property. If cash is involved, an escrow company or facilitator usually it, because treatment under section 1031 won’t be possible if the proceeds are paid to the seller even for an instant. In practice, however, the rules for a 1031 exchange can be quite complex and it is easy for a seller to run afoul with them. It’s always advisable to have competent legal counsel and a qualified accountant.

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Mechanic’s Liens

In a business context, contractors who do work on real property have a process called a “mechanics lien” that they can use to make sure that they get paid. This is a statutory lien that contractors, laborers and materialmen place on property when they’ve performed work or furnished materials in the erection or repair of a building or an improvement. They must generally give advance notice that they are going to file the lien, and must then take action to enforce the lien within strict timelines if they aren’t paid. Ultimately a mechanic’s lien could be used to foreclose on property, so it can be a very powerful tool for a contractor, a laborer or a materialman.

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Tax Sales

If you have purchased a tax sale certificate at a real estate tax sale, we stand ready to help you send the notices required by Indiana law. Because strict deadlines apply, it is essential that these required notices be timely filed in the proper manner. If, after the notices are sent, the property still has not been redeemed, we will file the required petition and notice to obtain a tax deed to the property.

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The attorneys of Efron, Efron & Yahne have collectively drafted thousands of leases for countless circumstances, whether the lease be commercial or residential. We will be happy to sit down with you to determine how to best protect your investment, while maximizing your investment return on your property. In the event that the terms of the lease are broken or not honored, our attorneys stand ready to assist you in reclaiming your property as quick as Indiana law will permit. Provided the proper notices have first been sent, in many cases we will be able to restore your property to you within two weeks.

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Eminent Domain/Condemnation

The fact that a government or utility can take someone's land against his or her wishes is sometimes difficult to swallow. When that happens or is even threatened, steps should be taken to make sure that the compensation to be paid for the taking is fair and just. This may require retaining an attorney to make sure rights are protected.

The law allows a government to take land from private owners for a public use, such as a governmental building, highway construction, construction of airports, etc. There are very few ways in which an unwanted taking may be prevented. As long as the taking is for a "public purpose," there is no Constitutional challenge. There may be defects in the procedure used by the condemning authority. Otherwise, a taking for a public purpose usually cannot be prevented. When that is the case, the only practical alternative is for you to secure the compensation to which you are entitled.

Both the United States and Indiana Constitutions provide that there can be no taking of private property without just compensation. Full compensation includes the fair market value (what a willing seller would take and a willing buyer would pay) of the property, based on the "highest and best use" of the property being taken, along with certain other damages to the property remaining after the taking. "Fair market value" is determined at the time of the taking. This includes such things as compensation for limited access, drainage problems, lost parking, etc. The idea is to place the property owner in as good a position as he or she would have been in had the property not been taken, insofar as monetary compensation can achieve that. "Highest and best use" does not necessarily mean the manner in which the property is currently being used, but rather the highest and best use allowed by law and circumstance. Remember, in assessing the proper compensation, value is not what you would be willing to accept for your land. The Court or jury must also consider what a willing purchaser would pay. There is no compensation for sentimental value.

The condemnation will not be halted simply because you cannot agree with the condemning authority about the value of the land being taken. The condemning authority may simply begin the legal process by filing a civil proceeding and depositing the amount its appraisers set as just compensation with the Clerk of Court. If the landowner then withdraws the money from the Clerk's office, without first obtaining a Court order to do so, the matter is over and the amount deposited will be the compensation. If the landowner chooses to contest the taking or to contest the amount, a proper response must be filed. If only the amount is being contested, the Court will usually allow the landowner to withdraw the deposit without waiving any rights. The lawsuit then proceeds.

Sometimes there can be "inverse" condemnation. This means that, even though your land isn't condemned, the project involved will have an adverse affect on your land. For example, construction of an airport nearby may result in noise that effectively diminishes or even destroys the value of your land. Usually when this happens, the only recourse for the landowner is litigation against the offending authority to seek just compensation for the loss.

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Zoning/Land Use/Development

Scott Yahne possesses extensive experience obtaining land use approvals for commercial developers and businesses. Yahne.Law handles all types of land use applications, including building permits, special use permits, conditional use permits, use variances, area variances and related approvals. Scott Yahne has appeared before Municipal Administrations, City Councils, Economic Development Agencies, Redevelopment Commissions, Public Safety Boards, Zoning Boards, Planning Commissions and professional staff representing those entities and responsible for carrying out the enforcement and management of the municipality they represent. Over a period of time, Scott has developed constructive and trusted relationships with many and various municipal representatives and has played a role in bringing those developments to life. For each project, Scott brings to bear his experience and intimate knowledge of the processes and personalities that guide the process.

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