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Estoppels are critical in a CRE investment purchase

If you’ve purchased a commercial or residential condo, you would have encountered an estoppel cer...

If you’ve purchased a commercial or residential condo, you would have encountered an estoppel certificate.

There are many reasons for obtaining a condominium estoppel (the information I discuss here is applicable only to single- and multi-tenant investments, excluding multifamily rentals):

* they provide insight into the project’s reserve fund;

* illustrate if there are any unpaid contributions or arrears;

* and determine if its bylaws and policies are in good standing.

Estoppels are just one of many due diligence items I encourage buyers to ask for.

Let’s look at the importance of obtaining estoppel certificate(s) during your investigation of an investment property.

A recent example

A landlord and tenant negotiated a tenant improvement allowance which was to be paid to the tenant once they had completed their improvements. The tenant was a national company with a few different departments handling various elements of the lease administration.

The tenant did complete the work but somehow forgot to thereafter ask for the agreed-upon amount of cash. The property was subsequently sold to another investor.

The investor did not obtain an estoppel certificate from the tenant during its due diligence period.

Sometime after the sale, the tenant realized they had failed to request the tenant improvement amount at the appropriate time.

Had the buyer requested an estoppel certificate from the tenant at the time of purchase, they would have insulated themselves from this problem.

How open do you think the previous owner is to paying this significant sum of money after the sale?

The tenant improvement allowance was amortized into the lease, which increased the tenant’s lease payment.

The buyer does not feel obligated to pay it, because they paid more for the property due to the cap rate applied to that increased rent.

Elements of an investment property estoppel certificate

The certificate must be executed by the tenant and may include, but is not limited to, the following declarations:

* the lease constitutes the entire agreement between both parties;

* the amount of security deposit held;

* any additional signage rent;

* there is no litigation outstanding between the two parties;

* there are no existing lease defaults by either party;

*  any improvements required to made by the landlord have been completed;

*  any amount agreed to be paid by the landlord for tenant improvements has been paid.

We use estoppel certificates that can be one or several pages long.  It typically depends on the complexity of the transaction, number of tenants involved and the sophistication of the buyer.

Getting an estoppel in place

A landlord typically does not want to go through the work and disturb the tenants until the buyer has removed all conditions.

A buyer doesn’t typically want to remove conditions until the estoppels have been provided.

A remedy can be to provide the certificates after the buyer has removed conditions, provided there is a process agreed to if something surfaces within the estoppel that requires a resolution prior to completion of the deal.

There are many issues that can surface if estoppels are not included within a commercial real estate investment sale.

If a seller is reluctant to allow this requirement to be written into the purchase agreement, treat this as a red flag.

It could be in your best interests to walk away before investing your time and money.

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