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Common Commercial Leasing Mistakes

Common Commercial Leasing MistakesLet’s look at 10 common commercial leasing mistakes and how to avoid them. Commercial leasing transactions are among the longest term contracts parties will ever enter into, yet many often take the cavalier attitude that “it is just a lease.” That lack of focus and attention to detail often leads to mistakes that can haunt the parties for years and waste valuable time and money.

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Ten Common Commercial Leasing Mistakes and Suggested Tips:

1. Incorrect Names of the Parties
The parties’ names must be clearly and precisely listed but have errors a shocking number of times, as either the landlord’s name, the tenant’s name or both are often incorrect. These mistakes cast potential doubts regarding the validity and enforceability of the lease agreement and raise possible defenses. If you end up in such a situation, a lease amendment should be signed that expressly ratifies all of the lease terms and acknowledges the prior error(s). Avoid such situations by verifying the parties’ names by searching New Jersey and Pennsylvania corporate websites, which can be completed within a minute free of charge. Obtaining copies of filed certificates of incorporation, certifications of formation and the like will also help verify that the parties’ names are correctly shown. Further, a short form good standing certificate or a  subsistence certificate can be obtained online in a few minutes at a nominal cost.

2. Parties No Longer Exist
Entities to lease transactions (whether landlord or tenant or their successors or assigns) may be dissolved. Thus, the parties should conduct basic due diligence and verify the facts on an ongoing basis. Obtaining good standing or subsistence certificates could be helpful in this regard. If, for example, a good standing certificate indicates that annual reports and related fees are overdue, that party should be compelled to file such reports and pay such fees to avoid being involuntarily suspended by the State. If a party has already been dissolved voluntarily or involuntarily, they should be required to get their “organizational house” in order, and then lease instruments can be signed.

3. Your Lease is Actually a Sublease
Tenants should consider obtaining title searches to verify ownership of the property by the landlord indicated in the lease documents, or at the very least by asking for copies of deeds, tax records and title polices from their landlords. Otherwise, a tenant may not know that its lease is actually a sublease, which is more common than one might think. If you are a subtenant and not a tenant, your landlord cannot grant to you any rights that do not exist under the master lease and, therefore, you cannot understand your rights unless and until you review the applicable master lease.

4. Authorized Parties Do Not Sign or Incorrectly State their Title
Only an individual authorized to bind an entity should be signing documents on its behalf, and the signer’s name and title should be clearly shown. Such basics are commonly disregarded and the parties simply assume that whoever has signed the lease is an authorized signer. You should consider requesting copies of Operating Agreements, Shareholder’s Agreements and applicable consents and resolutions to confirm that an authorized person is signing. The lease documents should also explicitly represent that the person signing this lease document on behalf of each party is duly authorized to bind such party. If an agent is signing on behalf of the landlord, ask for evidence of authority in the form of a signed agency agreement granting such powers. Finally, make sure that the title of the signer matches the type of entity that is being bound. General partnerships have General Partners; limited partnerships have General Partners and Limited Partners; corporations have officers (i.e. typically President, Vice President, Secretary and Treasurer) and limited liability companies most commonly have Managers or Managing Members.

5. Premises Size Not Indicated
The size of the premises should be indicated, especially when the lease document indicates a rental rate on a square foot basis or requires pass throughs based on a proportionate share of the building or center.

6. Blanks in the Documents
Do not leave any blanks in the documents. Aside from simply looking sloppy, such blanks may be crucial in terms of triggering contractual milestones (e.g. lease commencement date, rent commencement date, timing to complete landlord’s work and the timing for the tenant to submit plans and to open for business). In a worst case scenario, document blanks could give rise to questions and disagreements regarding enforceability.

7. Lender and Other Required Approvals Were Not Obtained
Landlord’s loan documents may require lender’s approval prior to entering into any lease or lease amendments, and it is easy to forget to obtain such approval. Landlords should reach out to their lender(s) as soon as the lease is agreed upon so that the deal does not get derailed by delays. Tenants should ask for evidence of such lender approvals and representations that all required third party approvals have been obtained (or are not necessary). The parties should also check for rights of first refusal (ROFR), rights of first offer (ROFO), use and building restrictions in leases granted to other tenants.

8. Unclear if Prior Tenant Parties and Guarantors Remain Liable After Assignment
Original tenant parties and guarantors often remain liable for lease obligations even after there has been an assignment of a lease, barring negotiated releases. However, such continuing liability is often unclear to the responsible parties, including tenants that sold their businesses. Lease assignment and consent documents should clarify the scope and extent of the parties’ liability.

9. Unexpected Zoning Board, Planning Board or Other Approvals
It is not uncommon for leasing parties to discover after signing that unanticipated approvals are needed (such as from the zoning board or planning board), which can delay occupancy by months or longer and result in significant expense. Signage and other approvals may also be necessary. Ideally, the parties would perform due diligence of the zoning code and obtain copies of prior approvals granted prior to entering into the lease, and then allocate their respective responsibilities, obligations and related costs between them.

10. Failure to Utilize Professionals
There is no such thing as a standard lease, and the parties must ensure that the documents being negotiated and signed reflect their mutual understandings. Landlords and tenants would be wise to utilize experienced and qualified professionals such as commercial real estate brokers with local knowledge to assist in the leasing process. They would also be prudent to choose an attorney with significant leasing experience, good judgment and a reputation for getting deals done.

CONCLUSION:

A leasing transaction is one of the longest term contracts most parties will ever sign, typically lasting five years or longer. Some landlords and tenants take the attitude that “it is just a lease” (and therefore not a big deal) and do not pay requisite attention to the key basics of any contract, and those basic deal terms are wrong in an astonishing number of deals. The most common commercial leasing mistakes, such as incorrectly naming the parties, leaving blanks that potentially impact the rent commencement date and other key milestones and incorrectly stating a signer’s title are shockingly common. Landlords and tenants should take their time to get the deal as reflected in the lease documents precisely right, and avoid common mistakes such as those listed above, the majority of which can be avoided without significant expense by simply paying attention to the details.

Kenneth M. Morgan is an experienced leasing attorney licensed in Pennsylvania and New Jersey.

The contents of this article are for informational purposes only and none of these materials offered are, nor should be construed as, investment advice, legal advice or a legal opinion based on any specific facts or circumstances.

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7 Insurance Policies for Small Business

Insurance Policies for Small Business

Let’s examine the typical insurance policies for small business. With so many different types of insurance to choose from, it can be overwhelming to determine what type is best for your small business. Hardenbergh Insurance Group is here to help explain the types of insurance policies available and how they can help protect you, your employees and your business’s bottom line.

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Here are 7 Insurance Policies for Small Business to Consider

Commercial Property Insurance

In the case of a catastrophic event such as a fire, explosion, burst pipe, storm or theft, commercial property insurance compensates you for losses or damage to your building, leased or owned equipment, and other property on the premises. In fact, commercial property insurance can cover items such as furniture, inventory, computers and anything that would be considered necessary for performing normal business operations.

Commercial property insurance is typically purchased as a stand-alone policy or as part of a comprehensive business owner’s policy that includes property and general liability coverage. Commercial property insurance is offered on either a replacement cost or actual cash value basis.
• Replacement cost: Pays the cost to replace or repair the damaged property with materials of like kind and quality, without any deduction for depreciation.
• Actual cash value: Pays the cost to repair or replace the damaged property, minus depreciation.

General Liability Insurance

Out of all the insurance policies for small business, General liability insurance policies typically cover an organization for claims involving bodily injuries and property damage resulting from its products, services or operations. What’s more, this form of insurance can help cover medical expenses and attorney fees resulting from bodily injury or property damage claims for which your organization may be legally responsible.

GENERAL LIABILITY INSURANCE POLICIES TYPICALLY HAVE FOUR COVERAGE ELEMENTS:

Premises liability covers you in the event that a person who is not employed at your business becomes injured on your property. If someone sued your business because they tripped and fell on your property, liability insurance can help cover those expenses.

Products liability covers you if a product or service causes injury to someone’s body or inflicts damage on a consumer’s personal property. If you’re a tech company that broke a customer’s computer while performing a service on it, those damages could be covered.

A personal injury is when your business inflicts a physical, financial or mental injury to a third party. For instance, let’s say you take action in detaining someone who you had reason to believe was stealing from your store. If it turns out your accusations are false and the person decides to sue you, you’d be covered under your general liability policy.

Advertisement injuries are caused by alleged misinformation, copyright infringement or slander made by your company. If you were advertising a product that claimed it could help clear acne and it ended up making a consumer’s acne worse, that could be considered an advertisement injury.

Overall, a general liability policy is beneficial for covering any medical bills or legal costs that accrue if the injured third party decides to sue your business.

Employment Practices Liability

Employment practices liability insurance (EPLI) is a form of insurance that covers wrongful acts that occur during the employment process. The most frequent types of claims covered under an EPLI policy include claims of discrimination, wrongful termination, sexual harassment and retaliation.

These policies will reimburse your company against the costs of defending a lawsuit in court, and for judgments and settlements. EPLI covers legal costs, whether your company wins or loses the suit. However, these policies typically do not pay for punitive damages, or civil or criminal fines.

Workers’ Compensation

Workers’ compensation is important in the event that an employee suffers a work-related injury or illness. This type of insurance is required in most states and is used to cover medical bills or wage replacement for employees who experience a work-related injury.

For example, if a worker pulled a back muscle at work and was unable to perform their duties, workers’ compensation would help in covering any physical therapy costs as well as compensating the employee for any lost wages.

Having worker’s compensation insurance can also protect your business from civil suits made by employees against your company related to their injuries.

Cyber Liability Insurance

If any part of your business is on an online platform, it is crucial to obtain cyber liability insurance. This type of coverage can protect your business from a cyber attack or interruption that can cause a loss in data, revenue and the trust between you and your customers.

Cyber liability insurance is not only there to protect the internal information of your company, such as employees’ social security or financial information, but it also protects your customers’ personal and banking information.

Most cyber liability policies include both first- and third-party coverage:
• First-party coverage is for the business itself— helping the business recover from any losses after a cyber attack.
• Third-party coverage is to cover claims by people who have been injured because of your business being hacked.

Restoring compromised or lost data can be very costly, so cyber liability insurance is there to help cover financial losses to your business and the costs of claims made against your company by clients or other third parties who were affected.

Commercial Auto Insurance

Commercial auto insurance helps cover the costs of an auto accident if you or an employee is at fault. This coverage can help pay for damaged property and medical expenses.
• Your business should consider a commercial auto policy if any of the following are true:
• Your business owns, leases or rents vehicles such as cars, trucks or vans.
• Your business has employees who drive their own vehicles to conduct business.
• Your business has employees who operate leased, rented or owned company vehicles.

Professional Liability Insurance

Professional liability insurance, also known as errors and omissions (E&O) insurance, can protect your business against claims that a service you provided caused a client to suffer due to a mistake on your part or because you failed to perform a service.

Professional liability insurance can cover the cost of defending your business in a civil lawsuit for an alleged error or omission. What’s more, depending on your industry, professional liability insurance may be required by law.
While many types of businesses need professional liability insurance, you should especially consider this type of insurance if your  business works directly with customers while providing services.

Contact Hardenbergh Insurance Group to help you analyze your needs and decide on the right Insurance Policies for Small Business.

Brian Blaston, Partner
Hardenbergh Insurance Group
phone: 856.489.9100 x 139
fax: 856.673.5955
email: bblaston@hig.net
www.hig.net

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Cost Segregation Can Increase Cash Flow for Commercial Properties

Cost Segregation Can Increase Cash Flow for Commercial Properties

Let’s look at how cost segregation can increase cash flow for commercial properties. Have you recently built, purchased, expanded or renovated a commercial property? If so, there may be significant untapped tax savings in the property or facilities. A cost segregation study can unlock those savings through greater tax deductions, accelerated depreciation and increased cash flow. Here’s how it works: Portions of a new or existing building are reclassified as “personal property” or “land improvement.” This cost classification can be depreciated over a shorter five, seven or 15 year period as opposed to the standard 39-year depreciable life of a commercial building.

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What if you built, renovated, expanded or purchased a building in prior years? Cost segregation is still an option. The IRS allows taxpayers to change prior accounting methods to take advantage of these previously understated depreciation deductions. This can be done without amending tax returns and can generate a relatively large tax deduction in the year of change.

Cost Segregation Can Increase Cash Flow Better than Ever (Thanks to Tax Reform)

Cost Segregation Can Increase Cash Flow Better than Ever  thanks to tax reform’s enhancement of bonus depreciation. In general, bonus depreciation is applicable to depreciable business assets with a recovery period of 20 years or less. Tax reform doubled bonus depreciation from 50 to 100 percent for qualifying property with acquisition and in-service dates between September 27, 2017 and December 31, 2022. This means that 100 percent of qualifying costs would be fully depreciated and recognized in year one and only the remaining building cost would depreciate going forward over 39 years. After 2022, the bonus rate decreases by 20 percent annually, so the time to act is now.

REAL RESULTS FOR REAL PROPERTIES

RKL performs over 80 studies every year for companies in a variety of industries, including rental real estate, office buildings, hotels/motels, golf courses, auto dealerships, manufacturing facilities, warehouses and more.

Here are two recent examples to demonstrate the potential savings from a cost segregation study.

• Construction of a new hotel facility in 2018: Of the total project cost of $13.5 million, RKL identified $5 million as personal property and land improvements. This cost segregation combined with enhanced 100 percent bonus depreciation a present value of the tax savings of $958,000 (using a 37 percent federal tax rate and six percent discount rate), with projected additional depreciation deductions of $4 million for a tax savings of $1.5 million.

• Turn-key construction of a new medical office in 2017: Of the total project cost of $2.4 million, RKL identified $1 million as personal property and land improvements. This cost segregation combined with enhanced 50 percent bonus depreciation produced a present tax savings of $200,400 (using a 42.67 blended tax rate and six percent discount rate), with projected additional depreciation deductions of $695,000 over the next seven years. This will produce tax savings of $296,500 over that seven-year period with $233,200 in the first year alone.

• 2018 look-back study for a previously purchased office/distribution warehouse facility: RKL identified $326,200 of the original $1.375 million building cost as personal property and land improvements. This resulted in a one-time additional depreciation deduction in the current year’s tax return of $170,700. To obtain an analysis of potential cost segregation tax savings, contact RKL today.

FOR MORE INFORMATION CONTACT:

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How to Get the Most Out of Your Office Space

Let’s look at How to Get the Most Out of Your Office Space. There’s nothing worse than working in a cluttered cramped space from 9 to 5. The space you share with your team matters. The culture of your business depends on the comfort of your employees. However, before you evaluate how much square footage you need, look into the design of your floor plan. Make a list of what is most important in your office space in order drive the most business and keep employee morale high. Is your company heavy on meetings? Do you have a need for a fun and extensive lunch area, or do most people leave the office for lunch? Do you entertain in the office space? Do you need specific areas for storage of marketing goods or other products? You may be holding onto a layout you no longer need, when you can be maximizing the space for more important things. There are many ways to make the most of the space you’re in now, therefore take the time to properly evaluate your office space using the steps below.

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How to Get the Most Out of Your Office Space

LET NATURAL LIGHT IN to Get the Most Out of Your Office Space

Natural light not only affects mood, but also the aesthetics of a space. Light can make rooms feel larger and better the mood of your employees. This comes down to color contrast. If you’re in a room that is dark, it will feel like you’re in a tight constricted space. Consider opening the blinds to let light in. If you have light colored walls and furniture, the light will bounce off and give the feeling that you’re in a larger space than you really are. If
you’re feeling adventurous, install a skylight in the office. You’ll be surprised how much light a skylight lets in. To avoid glare, add a filter so light is spread evenly throughout the office.

BECOME LESS RELIANT ON PAPER to Get the Most Out of Your Office Space

Not only is printing documents killing trees, it’s not as necessary as it was in the past. With the technology that we have today, you can share documents easily without having to print on a single piece of paper. This will also allow you to minimize the space needed for a printing station and using the space for something else. You will also save on ink, paper, and electricity costs by switching everything to digital.

UTILIZE COMMON AREAS to Get the Most Out of Your Office Space

You may not have as small a space as you think! Do you have dedicated areas specifically for meetings like conference rooms or a dining area? Those spaces can be used as extra work space.

It’s refreshing to have a change of scenery when you’re working. This is great, especially if your employees have their own laptops. Spread out and utilize the space you already have, but may not be using 80% of the time. Your employees will feel happier and their productivity will go up as a result.

CREATIVELY STORE to Get the Most Out of Your Office Space

You would be surprised on how many “dead spaces you actually have within your office layout. Underneath most desks and cubicles there exists an empty space where you can add either low bookcases or filing to hide items that require long term storage. By examining this storage option you will eliminate the need for storage in other areas, and gain back some of that wasted square footage. Cubicles and office desks now even have options for built in coat closets which allow employees to store their coats within their own space and allow you to eliminate the need for a central coat closet. Gaining the closet space back can allow you to rethink how that area can be designed.

MAKE SMART CHOICES ON FURNITURE to Get the Most Out of Your Office Space

Select furniture pieces that are easy to store and tuck away neatly when furnishing areas that are used less than 25% of the time. Plan your space with the overall design in mind. Whichever is your preference in color and style try and stay consistent throughout so that your message is as consistent as your sales process. Filing cabinets tend to take up a lot of space. Save your files digitally in a cloud instead of having physical pieces of paper, folders, binders, paper clips, etc, whenever allowable. You and your employees will be much more comfortable with the fresh open space!

FOR MORE INFORMATION CONTACT:

Josh Smargiassi
Principal
Boomerang, Inc.
6950 Sherman Lane
Pennsauken, NJ 08110
P 856.582.0100
F 856.582.0104
www.boomerangofficefurniture.com

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WCRE APPOINTED EXCLUSIVE AGENT BY SKY MANAGEMENT TO MARKET OXFORD COURT IN LANGHORNE, PA

Oxford CourtWCRE | CORFAC International is pleased to announce that it has been appointed by Sky Management Services as the exclusive office leasing agent to market +/-155,000 square feet at Oxford Court located in Langhorne, Pennsylvania, directly adjacent to Sesame Place and Oxford Valley Mall.

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This state of the art medical and office center was completely renovated in 2016 and is located directly off U.S. 1 & I-295. Along with being adjacent to the Oxford Valley Mall, the complex is very close to Jefferson Health, Bucks Campus and various other medical offices. The campus is situated in the heavily populated portion of Lower Bucks County that is currently one of the fastest growing communities in Pennsylvania and serves as the commercial hub for Lower Bucks County.

The complex’s retail visibility enables a variety of tenants from traditional retail use to office users. This campus is ideal for medical users along with laboratories, law firms, and other tenants that benefit from ground level visibility.

“We are thrilled to partner with Sky Management to market their first-class complex at Oxford Court on behalf of such a reputable owner across the East Coast” said Jason Wolf, managing principal of WCRE

WCRE’s Mitch Russell, Ty Martin, Kevin Coleman and Jason Wolf will be working will be working closely with Sky Management to facilitate the leasing of this well-trafficked property.

“We are very pleased to join forces with team WCRE as they take over the leasing at Oxford. While we have expanded our portfolio significantly throughout the east coast over the years, we have always had very strong ties to the area and Oxford Court remains one of the most valued assets in our portfolio,” said Alex Dembitzer, founder and CEO of Sky.

A marketing brochure is available upon request and additional information can be found at the links below.

About WCRE

WCRE is a full-service commercial real estate brokerage and advisory firm specializing in office, retail, medical, industrial and investment properties in Southern New Jersey and the Philadelphia region. We provide a complete range of real estate services to commercial property owners, companies, banks, commercial loan servicers, and investors seeking the highest quality of service, proven expertise, and a total commitment to client-focused relationships. Through our intensive focus on our clients’ business goals, our commitment to the community, and our highly personal approach to client service, WCRE is creating a new culture and a higher standard. We go well beyond helping with property transactions and serve as a strategic partner invested in your long-term growth and success.

Learn more about WCRE at www.wolfcre.com, on Twitter & Instagram @WCRE1, and on Facebook at Wolf Commercial Real Estate, LLC. Visit our blog pages at ww.southjerseyofficespace.com, www.southjerseyindustrialspace.com, www.southjerseymedicalspace.com, www.southjerseyretailspace.com, www.phillyofficespace.com, www.phillyindustrialspace.com, www.phillymedicalspace.com, and www.phillyretailspace.com.

About SKY Management Services

Sky Management Services, LLC, with corporate offices in New York and Philadelphia, is a leading real estate investment and management company which owns and operates a large, diversified portfolio of properties in the United States. Sky, as a private real estate equity firm with currently over $500mm of assets owned, continues to seek quality investments at reasonable returns which we have proven an ability to quickly close. We improve our properties through focused management and targeted value-add initiatives. We remain focused with a tenant centric understanding- we put tenants first. We work with our tenants to enhance efficiency, reduce costs and plan for future growth. 

Sky Management’s growth has been fueled by its long-standing philosophy of creating value by locating and actively repositioning, renovating and/or recapitalizing underperforming or underutilized assets – and executing this philosophy with a team of seasoned executives who function skillfully across multiple disciplines. We employ an opportunistic, value-driven, style and a flexible approach to acquire real estate assets, portfolios, and companies.

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Why You Need a Phase I ESA and a Preliminary Assessment Report in New Jersey

Phase I ESA

I’m buying a commercial or industrial property in New Jersey, and I’ve been told I need an ASTM Phase I Environmental Site Assessment (Phase I ESA). However, I’ve also been told I need a NJDEP Preliminary Assessment Report (PAR) as well? Do I really need both? Won’t the Phase I ESA provide me adequate innocent purchaser protection?

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SHORT ANSWER: NO. HERE’S WHY:

Chances are, you’re conducting a Phase I ESA to satisfy one of the requirements to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on CERCLA liability (Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601)), and the Environmental Protection Agency (EPA) All Appropriate Inquiry (AAI) Rule, Subsection 312.10 of 40 Code of Federal Regulations 312 (40 CFR §312). However, CERCLA is a federal law, and provides landowner liability protections under that particular law. What a Phase I ESA does not necessarily do, however, and as is made clear in the Phase I standard itself (ASTM E 1527-13, section 1.1.4), is address requirements of state or local laws; users of a Phase I ESA are cautioned that federal, state, and local laws may impose environmental assessment obligations that are beyond the scope of [the Phase I standard itself].

Like many other states, New Jersey has enacted its own innocent purchaser defense that requires a property owner to demonstrate that, at the time they acquired the property, they did not know and had no reason to know that any hazardous substance had been discharged at the property, by performing an “all appropriate inquiry” prior to purchase of the property. As stated in the New Jersey Spill Compensation and Control Act (Spill Act), any person who owns real property acquired on or after September 14, 1993 on which there has been a discharge prior to the person’s acquisition of that property and who knew or should have known that a hazardous substance had been discharged at the real property, shall be strictly liable, jointly and severally,
without regard to fault, for all cleanup and removal costs no matter by whom incurred [N.J.S.A. 58:10-23.11g(c)(3)].

However, contrary to most states, New Jersey has not adopted the federal All Appropriate Inquiries rule (which can be satisfied by performing a Phase I ESA) but instead has its own unique definition for satisfying “all appropriate inquiry.” Under N.J.S.A. 58:10-23.11g(d)(2), an “all appropriate inquiry” is defined as the performance of a preliminary assessment, and site investigation, if the preliminary assessment indicated that a site investigation is necessary.

As was again made very clear during a January 14, 2016 court ruling, a party buying property in New Jersey after 1993 must obtain a PAR in accordance with NJDEP rules in order to have a chance of obtaining innocent purchaser protection in the state of New Jersey. The decision was affirmed regarding environmental contamination at the Accutherm mercury thermometer manufacturing property in Salem County, that later became a Kiddie Kollege daycare. DEP v. Navillus Group, App. Div. Dkt. No. A-4726-13T3. In this case, despite advice of counsel, the defendants merely relied on various environmental reports, instead of performing a PAR; thus, no innocent purchaser protection was afforded them under the Spill Act, and they were liable for the contamination identified at their property.

IN SUMMARY:

If you’re performing real estate due diligence in New Jersey and want to qualify for both federal and state innocent purchaser liability protections, you need to perform both an ASTM Phase I ESA, as well as a NJDEP PAR.
Here at Whitman, in addition to standalone Phase I and Preliminary Assessment reports, we also provide our clients a single, combined PA/Phase I report that concurrently satisfies both federal and state innocent purchaser protections.

If you have any questions regarding real estate due diligence in New Jersey, or would like a quote for any of Whitman’s wide selection of the due diligence services, please contact Chemmie Sokolic, Whitman’s Director of Due Diligence Services, at 732-390-5858 or csokolic@whitmanco.com.

FOR MORE INFORMATION CONTACT:

Chemmie Sokolic, Director
Whitman
7 Pleasant Hill Road
Cranbury, NJ 08512
(732) 390-5858 (phone)
(973) 931-2474 (cell)
(732) 390-9496 (fax)

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Sale and Leaseback of Commercial Real Estate

Sale and Leaseback of Commercial Real EstateLet’s explore the sale and leaseback of commercial real estate. Confer with the professionals at WCRE or ask us for a seasoned real estate or tax attorney but here’s one technique Abo has seen work well with business clients. Although real estate is generally thought of as an illiquid asset, some liquidity can be achieved by taking out a loan backed by the property. Alternatively, a sale and leaseback may be used effectively if a company’s balance sheet is burdened with excessive debt or just having difficulty in obtaining new capital. Typically, the transaction involves the company owned property being sold to a third party and then leased back to the company under a long-term lease.

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Sale and leaseback transactions may be on the rise but clients need to be aware that the IRS often focuses on transactions between closely-held corporations and their controlling shareholder to make sure that these transactions benefit the company as well as the shareholder. In one common type of sale and leaseback transaction, the company sells the land with a building on it to the shareholder and, in turn, the shareholder leases it back to the company. Some of the financial and tax benefits we’ve seen have included:

The rental deductions the company could take might be significantly larger than the former depreciation deductions if the property had been in service for many years.

After the sale and the leaseback transaction, the shareholder’s basis in the property will be its fair market value which is usually greater than the price paid for the property by the corporation. Thus, the shareholder’s depreciation deduction would be much greater than what was previously available to the corporation (also still need to consider the tax consequences of the sale to the corporation).

The sale and leaseback may enable the shareholder to generate passive rental income that could be offset
against passive losses of the shareholder.

The IRS would obviously be concerned that these transactions have economic substance and that they are
based on reasonable market conditions, and not just designed to generate larger tax deductions. Thus, for
a sale to be valid, the controlling shareholder should have taken an equity interest in the property and also
assumed the risk of loss. For the leaseback to be valid, four tests come to mind that really should be met:

1. The useful life of the property should exceed the term of the lease.

2. Repurchase of the property by the corporation at the end of the lease term should be at fair market value and not at a discount.

3. If the leaseback allows for renewal, the rate should be at a fair rental value (speak to WCRE, not necessarily the accountant).

4. The shareholder should have a reasonable expectation that he or she will generate a profit from the sale and leaseback transaction based on the value of the property when it is eventually sold and the rental obtained during the lease term.

I suspect one of the biggest risks for the seller-lessee is the loss of a valuable asset that could have substantially appreciated over its useful life. Also, the rental market could drop, leaving the seller locked into a rental rate in excess of fair value. On the other side of the table, the seller could move or default, leaving the buyer with unattractive real estate in a soft market.

Even if there are no other problems, the benefits of the deal could be substantially reduced if the IRS deems that it is merely a “financial lease.” In that case, the IRS will treat the seller-lessee as the true owner of the real estate, with all the appropriate tax assessed, and the buyer-lessor will be treated as a lender-mortgagee.

Since sale and leaseback transactions can be quite complicated and also have to pass IRS muster, as I stated earlier, whether you are a buyer, seller or investor, you are well advised to consult with WCRE and seasoned real estate/tax counsel about your financial and tax consequences and the manner of structuring and implementing them to withstand possible IRS challenge.

FOR MORE INFORMATION:
Martin H. Abo, CPA/ABV/CVA/CFF is a principle of Abo and Company, LLC and its affiliate, Abo Cipolla Financial Forensics, LLC, Certified Public Accountants – Litigation and Forensic Accountants. With offices in Mount Laurel, NJ and Morrisville, PA, tips like the above can also be accessed by going to the firm’s website at www.aboandcompany.com.

 

Martin H. Abo, CPA/ABV/CVA/CFF
307 Fellowship Road, Suite 202
Mt. Laurel, NJ 08054
(856) 222-4723
marty@aboandcompany.com
For more information, contact:

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Is It Time to Refresh or Expand Your Space?

Refresh or Expand Your SpaceYour business is growing and you like your current location, so you’ve decided to renew your lease and either refresh or expand your space. GREAT!

Ready to expand your space? Did you call the movers yet?

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That’s right. Movers. And contractors. And space planners. And IT specialists. And a host of other vendors that you haven’t even thought of yet. When you’re staying in the same location, the reality is that the To Do list can seem almost as overwhelming as if you were pulling up stakes and starting all over in a new venue. Because you ARE starting in a new venue. The address may be the same, but how you utilize the space to maximize productivity is a rare opportunity you need to take full advantage of. You have two options: refresh or expand. To capitalize on either one of these options, you need a detailed staging and logistical plan to minimize downtime and keep your employees as close to 100% productivity while you update or expand.

So where do you start? You hire a professional logistics management team to shoulder the responsibility of planning and executing the project. No matter how big or small your space, here’s what an experienced logistics management team brings to the table for each option…

OPTION #1: Refresh Your Space

Also called an office restacking, you need to look at this type of project as an employee retention tool. No doubt your business has markedly changed over the last 10 years, so your office environment needs to evolve to best support that shift in culture. Restacking changes and improves the look and feel of the work environment, and by redefining the space to include collaboration rooms/workspaces, you can change the corporate culture in the  link of an eye to catch up with the times. A refresh re-energizes your employees, and shows you value their presence. New paint, carpeting, furniture, lighting, bathrooms, and more will make employees happier when they are at work, and warmly welcome new clients into your space when they visit. It’s a win-win.

OPTION #2: Expand Your Space

Here the biggest opportunity is to redefine the space. Are you adding new employees? Consolidating employees
from another location? Expanding the space for client interaction? A space planner will help you understand how much new space you really need (square footage/head count), and how much you should allot to common areas, workstation areas, private office areas, client showrooms, product production space, etc. An experienced logistics management team knows exactly what questions to ask to make sure you have the most comprehensive staging and logistics plan possible, so no detail is overlooked and no opportunity is missed:

(1) Where are you going to temporarily move active files and personal contents during your office refresh or expansion?

(2) Does the furniture have to be removed (new carpet installation) or just lifted in place (carpet tile installation)?

(3) Should you upgrade the furniture, or re-use what you have?

(4) How can you maintain productivity when computers or data centers need to be disconnected, moved, and reconnected?

The bottom line is refreshing and/or expanding your office requires careful thought and planning to keep your business thriving. The right logistics management team will help you hit the ground running as you launch your business into its next growth stage!

About Argosy Management Group, LLC

Argosy Management Group (AMG) is a leader in office relocation and logistics project/move management. AMG services companies throughout the U.S. and worldwide. AMG delivers a wide range of comprehensive services:  move management and transition planning, space planning and furniture needs, office and industrial relocation and liquidation, storage solutions and asset management, furniture disassembly and installation, IT/ data center relocation, and rigging.

For more information, contact: 

 

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New Proposed Regulations for Qualified Opportunity Zones

Qualified Opportunity ZoneThe second round of proposed regulations issued on April 17, 2019 provide additional guidance on some of the questions and issues that remained unclear after the initial round of proposed regulations that were issued in October 2018. The Opportunity Zone program was created by the Tax Cuts and Jobs Act (TCJA) to stimulate economic development and job growth in low income communities across the US, DC and the five US territories by providing tax breaks to investors in the qualified zone areas.

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TAX INCENTIVES OFFERED BY THE PROGRAM:

• Tax Deferral
• Step-up in basis
• Permanent Exclusion

TAX DEFERRAL:

Most capital gains can be deferred with tax savings to the taxpayer until 12/31/2026 or until the investment in the Qualified Opportunity Fund (QOF) is sold, whichever is earlier, if the original capital gains are invested in a QOF within 180 days of the sale of the asset.
• Gain from sale or exchange of assets between related parties as provided in the proposed regulations does not qualify.
• Investment in QOF must be an equity interest and cannot be a loan or another debt instrument.
• The deferred gain retains its attributes

STEP-UP IN BASIS:

The basis in the capital gains invested in the QOF is increased by:
• 10% if the taxpayer holds the QOF investment for at least 5 years, or
• 15% if the taxpayer holds the QOF investment for at least 7 years

Thus, the taxpayer can defer and effectively exclude up to 15% of the original capital gains from taxation.

PERMANENT EXCLUSION:

The capital gain on the sale or exchange of the investment in the QOF can be permanently excluded from taxation if the QOF investment is held for at least 10 years.

Example:

• John has a capital gain of $ 100,000 from sale of Apple stock as on 7/1/18.
• He invests $ 100,000 in QOF on 11/1/18 (within 180 days of 7/1/18):
• Does not pay any tax on the entire gain in 2018
• Holds the QOF investment until 11/30/23 (past 5 years) and sells the QOF investment at a gain of $ 20,000:
• Gets a step-up in basis of 10% or $ 10,000 on the original gain and pays tax only on the remainder of the original gain of $ 90,000. The $ 20,000 gain on the sale of QOF investment is also subject to tax in 2023.
• Holds the QOF investment until 11/30/25 (past 7 years) and sells the QOF investment at a gain of $ 35,000:
• Gets a step-up in basis of 15% or $ 15,000 on the original gain and pays tax only on the remainder of the original gain of $ 85,000. The $ 35,000 gain on the sale of QOF investment is also subject to tax in 2025.
• Holds the QOF investment until 11/30/28 (past 10 years) and sells the QOF investment at a gain of $ 65,000:
• The $ 65,000 gain on the sale of QOF investment is permanently excluded from taxation. Must pay tax on the
deferred gain of $ 85,000 in 2026.

There are several key topics and rules that need to be followed in order to take advantage of this tax benefit. For more information, contact Jeffrey Cohen, Partner, Tax Services Leader, at jcohen@grassicpas.com or Shashi Singal, Tax Senior Manager, at SSingal@grassicpas.com. For more information on Grassi and additional services, please contact Chris Fifis, Director of Business Development at 201-808-9746.

 

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Second Annual WCRE Celebrity Charity Golf Tournament Raises $35,000

Second Annual WCRE Celebrity Charity Golf Tournament Raises $35,000In its second year, built on the remarkable success of WCRE’s community commitment and annual celebrity charity hockey event, The WCRE Foundation has successfully raised approximately $35,000 to be shared equally by 6 charitable causes within the Philadelphia and Southern New Jersey region. Over the past three years, The WCRE Foundation has now raised close to $235,000.

The Second Annual WCRE Celebrity Charity Golf Tournament which was held at Ramblewood Country Club in Mount Laurel this past Friday afternoon, is the brainchild of Philadelphia Flyer legend and WCRE director of strategic relationships Brian Propp and WCRE’s vice president and principal, Chris Henderson. WCRE welcomed 120 area business leaders and many guests to an afternoon of great golf, fun, competition and contests.

All proceeds from the event will be shared among the CARES Institute at Rowan University, the Jewish Federation of Southern New Jersey, the Alzheimer’s Association Delaware Valley Chapter, the American Cancer Society, Susan G Komen-Philadelphia and Samaritan Healthcare and Hospice. Each of these organizations benefits from WCRE’s long-standing practice of donating a portion of its proceeds from every transaction to an area charity. Learn more about this program at http://wolfcre.com/community-commitment/.

“This event was another successful gathering for The WCRE Foundation and our community partners. Special thanks to the entire WCRE team, our incredible sponsors, donors, golfers, friends and Ramblewood Country Club who all helped make our 2019 Celebrity Charity Golf Tournament a victory for 6 incredible non-profits in our community,” said Jason M. Wolf, founding principal of WCRE. “It is a credit to our friends, neighbors, and business associates that we are able to come together to improve the lives of others.”

About WCRE

WCRE is a full-service commercial real estate brokerage and advisory firm specializing in office, retail, medical, industrial and investment properties in Southern New Jersey and the Philadelphia region. We provide a complete range of real estate services to commercial property owners, companies, banks, commercial loan servicers, and investors seeking the highest quality of service, proven expertise, and a total commitment to client-focused relationships. Through our intensive focus on our clients’ business goals, our commitment to the community, and our highly personal approach to client service, WCRE is creating a new culture and a higher standard. We go well beyond helping with property transactions and serve as a strategic partner invested in your long term growth and success.

Learn more about WCRE on Twitter & Instagram @WCRE1, and on Facebook at Wolf Commercial Real Estate, LLC.

Visit our blog pages at www.southjerseyofficespace.com, www.southjerseyindustrialspace.com, www.southjerseymedicalspace.com, www.southjerseyretailspace.com, www.phillyofficespace.com, www.phillyindustrialspace.com, www.phillymedicalspace.com and www.phillyretailspace.com.

 

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Why Smart Buildings Matter to Commercial Real Estate Owners

smart buildings energy consumptionLet’s look at why smart buildings matter to commercial real estate owners. Energy cost savings are top of mind for every commercial building owner, operator, and facility manager, but it’s time to be proactive. On average, a U.S. office building spends nearly 29% of its operating expenses on utilities, and much of this expenditure goes toward HVAC operation.

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Researchers at Massachusetts Institute of Technology (MIT) estimate commercial buildings account for 20% of all the energy used in the U.S. and conclude that as much as 30% of that energy is wasted. Wasted energy will only increase over time without intervention. Imagine a solution that prevents waste and saves 15-30% on energy expenses? That’s possible to achieve with smart buildings.

Smart buildings are any facility that have complete automated controls and systems in place that are integrated together to form an intelligent data collection application, usually via a building automation system (BAS).
BAS offers reduced operation and energy consumption, improved building efficiency, preventative maintenance, comfort for workers and building occupants, and better use of resources.

At Pennoni, we offer our Utilities Watch (UW) solution, a combination of best-in-class energy analytics/fault detection software and engineering expertise that optimizes buildings, reduces costs, and minimizes environmental impact.

Through UW, our software continually analyzes data from diverse systems: BAS, energy, water, and other resource metering systems to identify opportunities for cost reduction. The fault detection and diagnostics application within the software drills down into patterns to identify issues, deviations, and opportunities for operational improvements and cost reduction.

Utilities Watch Key Benefits

Reduce costs

  • Optimize buildings and reduce energy consumption
  • Increase control and visibility of energy budget
  • Decrease maintenance and capital costs through proactive and predictive maintenance
  • Increase lifespan and reliability of HVAC systems

Validation and M&V

  • Performance goals
  • ECM’s, LEED

Commissioning

  • MBCx – automated ongoing commissioning

Risk Management

  • Disaster recovery (information supports better identification of issues)

Improve sustainability strategies, goals, and metrics

  • Full integration to EnergyStar Portfolio Manager
  • Earn additional LEED points for existing buildings

Improve portfolio management

  • Benchmark buildings and compare performance
  • Performance accountability

Deploying smart buildings software is only half of the equation. Our energy analysts and engineers write custom algorithms to automate analyses that traditionally required constant manual effort. From there, our team of engineers interprets the data to make it meaningful and actionable with custom dashboards and notifications that ensure the facility manager has full visibility and can readily prioritize activities, ensuring much greater efficiency.

For more on smart buildings and Utilities Watch, contact Tony Lepre at (609) 214-5520 or TLepre@Pennoni.com.

tony lepre

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Like-Kind Exchanges (1031 Exchanges) and Tax Law Changes

Like-Kind Exchanges (1031 Exchanges) and Tax Law ChangesThe Tax Cuts and Jobs Act (TCJA) made tax law changes that affected virtually every business and individual in this past tax year 2018 and the years ahead. One tax provision that taxpayers should be aware of is that a like-kind exchange, otherwise known as a 1031 exchange after the code section to which it applies, is now generally limited to exchanges of real property.

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Here’s what you need to know:

Beginning after December 31, 2017, section 1031 like-kind exchange treatment applies only to exchanges of real property held for use in a trade or business or for investment, other than real property held primarily for sale. Before the law change, section 1031 also applied to certain exchanges of personal or intangible property, such as machinery, equipment, vehicles, artwork, collectibles, patents, and other intellectual property. Effective January 1, 2018 these types of assets do not qualify for nonrecognition of gain or loss as like-kind exchanges.

Generally, if you exchange business or investment real property solely for business or investment real property of a like kind, section 1031 provides that no gain or loss is recognized. If, as part of the exchange, you also receive other (not like-kind) property or money, gain is recognized to the extent of the other property and money received, but a loss isn’t recognized.

Properties are of like kind if they are of the same nature or character, even if they differ in grade or quality. Generally, real properties are like-kind properties, regardless of whether they are improved or unimproved. For example, an apartment building would generally be of like-kind to unimproved land. However, real property in the United States and real property outside the United States aren’t like-kind properties.

We often will recommend deferred exchanges. A deferred exchange occurs when the property received in the exchange is received after the transfer of the property given up. For a deferred exchange to qualify as like kind, you must comply with the timing requirements for identification and receipt of replacement property. The replacement property for the exchange must be identified within 45 days after the property being given up is transferred. The replacement property must be received within 180 days, or by the due date of the tax return including extensions, whichever is earlier. Real estate property includes land and generally anything built on or attached to it. Again, an exchange of real property held primarily for sale still does not qualify as a like-kind exchange.

A like-kind exchange is reported on Form 8824 which taxpayers must file with their tax return for the year the taxpayer transfers property as part of a like-kind exchange. This form certainly assists us tax professionals in helping our client figure the amount of gain deferred as a result of the like-kind exchange, as well as the basis of the like-kind property received if cash or property that isn’t of like kind is involved in the exchange. Take a look at the form as we think it flows almost logically!

If you make a deferred exchange using a qualified intermediary, the transfer of the property given up and receipt of like-kind property is treated as a like-kind exchange. If you fail to meet the timing requirements, your transaction won’t qualify as a deferred exchange and any gain may be taxable in the year you transferred the property.

Clear as mud, eh? Now you know why we at Abo and Company insist clients retain and rely on credible and seasoned real estate professionals, qualified intermediaries in tandem with real estate attorneys well versed in this arena.

FOR MORE INFORMATION:

Martin H. Abo, CPA/ABV/CVA/CFF is a principle of Abo and Company, LLC and its affiliate, Abo Cipolla Financial Forensics, LLC, Certified Public Accountants – Litigation and Forensic Accountants. With offices in Mount Laurel, NJ and Morrisville, PA, tips like the above can also be accessed by going to the firm’s website at www.aboandcompany.com.

 

 

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