Law for Non-Lawyers

COURSES:

Talk the Talk...Walk the Walk

• Law, controlled by: The U.S. Constitution; state constitution; state statute or local ordinance; common law.
• Basics of tort law.

The Contract

• Understand the principles of the Law of Contracts.
• Components of a contract.
• Mechanics of creating a contract: documentation needed to protect one’s interest; recognizing oral contracts and remembering the terms.
• Analysis and discussion of pertinent contracts: ownership contracts; partnership agreements; mortgage contracts; contiguous property owners; conditions to governmental approvals for development; REAs, et al.; leases; licenses.
• Short-term/promotional contracts, licenses, kiosks, entertainment and temporary tenants.
• Remedies that shopping center professionals create and administer: principle of “Detrimental Reliance”; money damages: compensatory and future obligations; specific performance: money is no substitute.

Acquisition, Development and Construction

• The art of acquisition; the law as it pertains to deeds, assignments of ground leases, tenant leases and licenses. Warranties, assumption of liabilities; assurances, transfer taxes and recording fees. Due diligence investigation, consent and approvals and authority of parties.
• The legalities of development; assemblage of land, acquisition of land, zoning issues and land use regulations. Entitlement processes including plan approval, zoning and permits. Defining and dealing with impact fees.
• Tax benefit programs as they are determined by different states, tax increment financing, abatements, qualifications for tax advantages and payback options. Basics of design and construction contracts. Construction liens and their ability to hinder the development process; statues of limitation, risk of double payments, liens against leaseholds.
• Bonds and Sureties; critical differences between both, use of bonds in a shopping center context, different kinds of bonds— fidelity, bid, performance and payment, utility and lease security deposits.

Human Resources & Labor Relations Challenges

• The law, as it applies to human resources: labor contracts; Employment at Will; employment contracts: implied vs. written; collective bargaining agreements; labor issues; primary and secondary strikes—how to handle; union organizational drives; distinction between labor union picketing and citizens exercising their civil rights.

Insurance and Risk Management

• Legal duty regarding customer safety: duty to keep premises safe from hazards; duty to keep premises safe from criminal conduct of third parties; risks associated with fulfilling the duty to maintain safety: assault, battery, false imprisonment.
• The law, as it applies to insurance and claims administration: insurance contracts; property damage; liability; tenant insurance; indemnification; subrogation; co-insurance. Risk management plan: identify risk; avoid, eliminate or prevent risk; defend from claims; certificates of insurance.

Complying with the Government is Everyone’s Job

• Government as a friend and a foe in the operation of a shopping center: ADA and construction standards; recognizing and understanding noncontractual duties imposed by law and as a matter of social policy.
• Rights of owners vis-à-vis undisciplined customers—shoplifter’s rule: right/obligation to thwart theft; right/obligation to exclude trespassers and nuisances.
• Understanding the role of government in the ownership and operation of a shopping center: land use designations; governmental approval of the construction and continuing use of improvements; public access: the legal duty to recognize civil rights of customers and others (“Pruneyard”): the right of access by third parties to shopping center and contiguous private property; First Amendment freedoms vs. Fifth Amendment freedoms; a shopping center as a public forum for free speech.
• Arrests vs. civil injunction: citizen arrest vs. police arrest: where do you find a judge on Saturday?; control of property; control of business management theories; future impact; promotional activities and the Pruneyard question.

Finding the Right Lawyer for the Task at Hand

• Do I need a lawyer? How do I find the right one?...selecting the team; establishing the procedures.
• Calling in the specialist with expertise in litigation, labor, bankruptcy, tax and collections: how to find the right lawyer.
• Exchanging information and business practices with your lawyer is an educational process that is necessary for effective and timely management: what’s the law vs. good business result?
• How to use your lawyer to obtain a high degree of effectiveness from both a cost and substantive perspective. The do’s and don’ts prior to engaging your lawyer.

Anatomy of a Lease

• Understanding the lease as an executory contract and a transfer of real property: need for specificity; need for clear mechanics and business practices. Crafting the Lease: four essential terms; when is the lease created and what effect does taking possession prior to execution; eCommerce and its impact on understanding, crafting and negotiating lease clauses.
• Executing the Terms of the Lease: does the content of the lease follow business practices and procedures?; strict enforcement; amendment by conduct; detrimental reliance; accounting practices; landlord as “partner” of tenant; landlord as “agent” of tenant; boiler plate and lease form.
• Key provisions
• Business points
• Special problems unique to shopping center leases: rights of approval by mortgagee; abandonment of premises by tenants; abandonment of goods and personal property by tenants; enforcement of performance obligations; enforcement of monetary obligations.
• Technology transfer of documents— what can and should be sent electronically? Negotiation and drafting implementation of the documents: authentication and execution of technology transfer.

Dispute Avoidance and Resolution and Bankruptcy Issues

• How to deal with and resolve defaults before and after the introduction of lawyers.
• Landlord-tenant dispute resolution techniques—arbitration, settlement, and other methods of resolution.
• The US Bankruptcy Code—principles to Know: understanding the various chapters; recognizing signs of potential bankruptcy filing and preparing; impact of § 365 B of the Bankruptcy Code.
• Workouts—Give-Ups, Give-Backs and Premiums.

Class Exercise: Applying the Principles You Have Learned

• Put the principles of law you have learned into actual practice.
• Learn to identify legal issues in a “real world” situation, before you have a problem. Arrive at solutions that will minimize your exposure to liability.
• Know when you need to call for help.