On April 1, 2020, Governor Mike DeWine signed Executive Order 2020-08D, which contains certain “requests” of commercial mortgage lenders and landlords with small business commercial tenants located in Ohio.
While the health and safety of the US populace is of primary concern, the economic and legal implications of COVID-19 have already proven to be significant, particularly in the commercial real estate context. Mandated closures have left landlords and tenants concerned about the enforceability of lease obligations (especially with respect to the obligation to pay rent); purchasers and sellers concerned about meeting the timelines set forth in contracts of purchase and sale and the logistics of closing; borrowers and lenders concerned about the fulfillment of loan obligations; ...
At this year’s International Council of Shopping Centers (ICSC) Retail Development & Law Symposium held in Columbus, Ohio last month, I led a roundtable discussion on a commonly utilized transactional structure referred to as a membership interest “drop-and-swap,” which is also referred to as the “LLC loophole.”
In January, Cincinnati City Council passed legislation imposing restrictions on residential landlords’ right to collect security deposits from their tenants. Specifically, the ordinance amends Chapter 871 of the Cincinnati Municipal Code to require that certain residential landlords give their tenants alternatives to the traditional security deposit (a payment equal to one month’s rent, due at lease signing). Those alternatives include (1) rental security insurance, (2) a reduced security deposit (no more than 50% of the monthly rent), and (3) payment of the full security deposit, but split-up into at least six smaller, monthly installments.
On December 8, 2016, the Ohio legislature passed Senate Bill 235 ("SB 235") which, among other things, adds Section 5709.52 to the Ohio Revised Code (“ORC”). Effective March 28, 2017, this section authorizes local governments to approve property tax exemptions for the increase in property value for property that is either “newly developable property” or “redevelopment property.” These terms essentially mean that as to a parcel of property, no commercial, industrial or agricultural operations are currently taking place on the property and that construction or reconstruction of a commercial or industrial building(s) is planned, but a certificate of occupancy has not yet been issued.
During this pre-development phase, the property tax exemption provided by SB 235 effectively freezes the taxable value in place during the exemption term until a certificate of occupancy is issued or upon the occurrence of other circumstances, as discussed below.
On December 8, 2016 the Ohio Senate passed House Bill (“HB”) 463. HB 463 in part amends Ohio Revised Code (“ORC”) Chapter 3735, which governs Community Reinvestment Area tax exemptions (a “CRA”).
The scenario of a developer who paid cash for a parcel of land and wants to get started on development and construction prior to the closing of the construction loan is fairly common. However, under Ohio law a pre-start construction project creates difficulties for the title insurance underwriter to insure the priority of the mortgage over mechanic’s lien risk. This is likely to result in more time and costs to provide the required title insurance and if not handled properly, it could jeopardize the financing for the project.
While KMK continues to grow its expertise in leading New Markets Tax Credits financing deals for many types of significant projects and as we expand our work in EB-5 financing deals, P3s and PRIs, we are surprised by the number of communities in some parts of the country still unfamiliar with the tremendous financing horsepower of NMTCs. Here is a quick highlight of this extremely valuable financing tool.
- Real Estate Law
- U.S. EPA
- Environmental Law
- Clean Water Act
- Tax Credit
- Economic Development
- Environmental Site Assessment
- Opportunity Zone
- JOBS Act
- Tax Abatement
- Ohio Foreclosure Reform
- Toxic Substances Control Act
- Receivership Statute
- Employment Law
- CDFI Fund
- Community Development Entities
- Community Development Financial Institutions Fund
- New Markets Tax Credit
- NMTC Financing
- Pre-Start Construction
- Title Insurance
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- Resource Conservation and Recovery Act
- USEPA Guidance
- Construction Litigation
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- LEED Certification
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- Ohio Governor Mike DeWine Signs Executive Order Requesting Relief for Small Business Commercial Tenants and Commercial Real Estate Borrowers
- COVID-19 and Commercial Real Estate
- Columbus, Ohio ICSC 2020 Recap – The LLC Membership Interest “Loophole”
- Issues for Residential Landlords Attempting to Navigate Cincinnati's New Security Deposit Legislation
- Legal Alert: EPA Repeal of 2015 "Waters of the United States" Rule
- Columbus, Ohio ICSC 2019 Recap – Land Assemblage Best Practices
- Proposed Creation of the Economic Development Bond Bank
- Proposed Ohio Opportunity Zone Tax Credit
- Ohio Opportunity Zone Designations Within the City of Cincinnati
- Spring Legislative Update/Economic Development