Real Estate Law

Covering Transactions, Finance, Litigation, Land Use, Leasing and Eminent Domain

Higgs Fletcher & Mack represents clients in every segment of real estate law. Its attorneys have earned an enviable reputation of maintaining the highest degree of professionalism among buyers, sellers, escrow and title companies as well as garnering the respect of the municipal authorities in the region.

Real Estate Transactions

Whether in acquisition, development, leasing, financing, compliance, entitlements, public finance, project finance or disposition, Higgs’ Real Estate Law Practice Group has a depth of experience in representing public entities, developers, landlords and tenants, mobile home parks, lenders, borrowers, and investors. Our attorneys are well versed in transactions involving ground leases as an alternative to ownership, including drafting, reviewing, and negotiating their terms. Examples of representative transactions include:

  • 36 lot real estate development resulting in 1.5 Million square feet of commercial/industrial space with ground leases for each lot, related construction and permanent financing, major tenant leases
  • Ground lease and sublease REIT restructuring involving two major downtown hotels on Port District property
  • $27.4 Million acquisition of 550-unit apartment project
  • Representation of developers/builders in connection with master-planned communities and related recreational amenities such as golf courses, swimming and tennis facilities, etc.
  • Real estate transactions involving creation of real property ownership structures in certain foreign jurisdictions
  • $11.4 Million sale of regional hotel and related parking facility
  • $28.5 Million CMBS multi-jurisdictional defeasance transaction

Real Estate Litigation

Our attorneys frequently represent clients in connection with a wide range of disputes regarding various interests in real property, including purchase and sale contracts, escrow agreements, lender issues, title and boundary disputes, title insurance, quiet
title, adverse possession, easements, construction defects, home owner association disputes, foreclosures, receivers, bankruptcies, tax appeals, land use, shopping center, and environmental litigation as well as disputes between property owners and with brokers, contractors, developers, and other professionals. Described below are a few of these types of engagements:

  • Resolved a judicial foreclosure and claim for deficiency judgment on a multi-million-dollar property in Northern San Diego County
  • Assisted clients in arbitration and obtained refunds of deposits in real estate development purchase agreements
  • Represented client in contract dispute and obtained a multi-million-dollar jury verdict on cross-complaint

Real Estate Project Finance

Higgs’ Real Estate Law Practice Group is very experienced in orchestrating mutually beneficial financial agreements on behalf of both lenders and borrowers surrounding the purchase, refinance of property, and project finance transactions, including solar and wind energy projects, hotels, and low income housing. We have the expertise in negotiating and drafting terms that ensure our clients’ assets are generating the maximum value possible. Examples of project finance engagements include:

  • Represented developer of fuel cell systems on campuses of State universities and colleges to acquire, install and operate fuel cell projects providing substantial electricity cost savings and related project financing, including tax equity investments and construction financing
  • Represented developer of $65 Million highrise low income housing project, interfacing with local housing authority and related bond and project financing
  • Represented clients (both owners and developers) of solar and wind energy projects, including leasing and related financing
  • Served as borrower’s counsel on $30 Million refinance and reissuance of tax exempt bonds
  • Served as borrower’s counsel on $25 Million bond financing for improvement and construction of school facilities
  • Serve as borrower’s counsel on $47 Million CMBS refinance for a downtown San Diego hotel
  • Served as borrower’s counsel in $21 Million CMBS loan to San Diego area hotel and corresponding defeasance transaction
  • Served as borrower’s and buyer’s counsel on $20 Million mobile home park acquisition and corresponding CMBS financing
  • Served as lender’s counsel for a $300 Million commercial line of credit to finance the acquisition of various real estate investment properties in California
  • Represented lender in securing a $20 Million revolving line of credit to finance the operation of an international renewable energy company in Canada
  • Served as lender’s counsel on construction and take-out (permanent) loans in excess of $250 Million for retail malls, senior living/skilled nursing and care facilities, self-storage projects, office buildings, hotels, mobile home parks, multi-family projects, luxury apartments, gaming facilities, and highrise residential development
  • Served as lender’s counsel on loans for the acquisition of office buildings, apartment projects, retail projects, gas stations, convenience stores, and car wash properties
  • $167 Million syndicated construction loan for a high-end retail, office and residential project and $210 Million syndicated construction/renovation loan for Indian gaming facilities

Real Estate Land Use

Our attorneys possess substantial experience in representing developers in entitling residential, commercial, and mixed-use projects. We help clients navigate the increasingly complex local land use approval process and advocate for them at administrative hearings and appeals on development projects. The Higgs’ Real Estate Law Practice Group representation includes compliance with the California Environ-mental Quality Act (CEQA), to ensure that projects remain on track and obtain timely approvals. Examples of the firm’s involvement in this area of practice include:

  • Represented property owners along the 117-mile Sunrise Powerlink Transmission project line, obtaining favorable settlements for the property owners being affected by the eminent domain proceedings
  • Represented several property and business owners in the Redevelopment Agency of the City of San Diego’s eminent domain actions to acquire land for downtown stadium
  • Represented winery owner in securing development approvals for a major winery and hotel resort project in Temecula Wine Country
  • Represented national developer in securing land use entitlements and ensuring CEQA compliance for a 550-acre specific plan project
  • Represented national developer in securing land use entitlements for a 400-unit apartment project
  • Represented property owner in securing development approvals for a major mixed-use project in a historic downtown commercial district
  • Represented numerous developers in cancelling agricultural preserve contracts under the Williamson Act
  • Represented large landowner in successfully subdividing 86 acres of citrus property for commercial and large-lot residential development
  • Served as contract Deputy City Attorney, advising the Planning Director and the Planning Commission on a variety of development projects, for a rapidly growing city in Southern California
  • Represented public agency in defending claims challenging agency-initiated general plan amendment to follow future residential development
  • Represented numerous developers in:
    • Complying with CEQA
    • Obtaining approvals for general plan amendments, specific plans, tentative tract maps, residential subdivisions, zone changes, conditional use permits, variances, conservation easements
    • Negotiating conditions of approval
    • Resolving code enforcement matters
  • Represented developer in obtaining approvals for controversial self-storage project
  • Regular interaction with engineers, planners, architects, agency staff and appointed and elected officials to address and successfully resolve numerous land use issues, including compliance with CEQA

Real Estate Leasing Transactions

Our attorneys have experience handling commercial and ground lease transactions for owner, tenants, lenders and borrowers. Types of transactions handled include the following:

  • Served as tenant counsel on multiple restaurant lease negotiations for prominent San Diego restaurant group
  • Represented Landlord in negotiation of lease for a medical facility (dialysis clinic and offices)
  • Represented Landlord in the purchase-leaseback of a fast-food restaurant
  • Reviewed dozens of leases and drafted and negotiated SNDA’s and tenant estoppels in connection with commercial real estate finance deals. Such leases have included office, retail, industrial/ warehouse, and medical facilities
  • Updated the standard commercial lease form for a national real estate service firm
  • Negotiated and drafted ground lease in connection with the construction of a new senior living facility
  • Negotiated and drafted ground leases throughout California on behalf of a national restaurant chain
  • Represented lenders and borrowers in numerous commercial real estate loan transactions secured by a leasehold mortgage on an existing ground lease

Eminent Domain Transactions

The Firm’s eminent domain practice involves representation of property owners, businesses, and public agencies in all matters involving the acquisition of private property for public use. This includes eminent domain court proceedings, relocation assistance, and administrative hearings. We provide a full range of eminent domain services tailored to each client’s individual situation from the initial public agency
contact, acquisition offers, trials, and appeals on issues affecting just compensation for property, loss of goodwill, severance damages to remaining property, as well as inverse condemnation to compensate for a public agency’s actions which constitute a taking of property through physical or regulatory actions. Examples of some of our eminent domain actions include:

  • Involvement in most major public projects in San Diego County over the last several decades including numerous freeway acquisitions, trolley and train rights of way, regional parks, construction and expansion of large public facilities, and redevelopment projects
  • Representation of the largest property owner in the downtown ballpark stadium footprint
  • Representation of a school district in the acquisition of over 20 new school sites
  • Representation of a community college district for the expansion of various campuses
  • Representation of a public entity acquiring land for the trolley line expansion from Old Town to La Jolla
  • Represented property owners in regard to:
    • SDG&E’s Sunrise Power Link Project
    • The North County Sprinter
    • Petco Park
    • Olivenhain-Lake Hodges Pipeline Tunnel
    • The Gaslamp Quarter
    • Acquisition of Freeways 15, 52, 125, 906, SR11, & SR67

Higgs Fletcher & Mack has earned a reputation of the highest professionalism among the escrow and title companies serving Southern California as well as the respect of the counties and cities in the region.
 


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Video Resources:

  • Rolling Tenancy in Common Agreements into Limited Liability Companies

    Are you involved in a TIC real estate program? My name is Mike Jones and I’m a transaction partner here in the real state in corporate groups. Tenants in Common ownership programs, called TICs, were a very popular structure for 1031 real estate exchanges. Many of these TICs are now looking to refinance their real estate. However, most lenders no longer are willing to loan to TICs. The solution is to transform the TIC into an LLC. We have experience in these TIC rollups and we’ll be glad to discuss with you.

  • New California Limited Liability Company Act

    On January 1, 2014 the California Revised Uniform LLC Act will go into effect and will significantly change the laws on how California LLCs are operated. For example, the Act will limit how an operating agreement can define, alter and eliminate the fiduciary duties of members and managers. In addition, it will restrict how and when an LLC can indemnify its members and managers. It´s important to know that there is no opt in or opt out of this act and it will apply to all LLCs. Now it is time to plan ahead and determine how this Act will impact your business.

  • Personal Liability under a Guarantee

    Clients are often mistaken regarding personal liability under a guarantee following a non-foreclosure sale, believing that California´s anti-deficiency laws protect them. This is generally not the case. A guarantor should not assume that they are protected from personal liability under California´s anti-deficiency laws. Rather, they should consult with competent counsel prior to signing a guarantee.