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Build to suit condos, earnest money, lock in buyer???

I am building some retail condos and one tenant wants 25,000 sq ft which is one building. Is there anything legally binding or a document we can put together so the buyer can not walk before I have a an instrument transferring ownership of the building. I can't afford to build this special purpose building with just earnest money and then have them walk at/before completion. What are my options.

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Attorney answers (4)

Reputation Level 7
You should complete the sale before you begin construction. The terms of your construction duties should be pursuant to a development agreement entered into with the buyer. This protects buyer in that they will get what they have bargained for and gives you the capital you need to construct the building. Please contact me if you would like to engage my services for creation and negotiation of such a document.

Reputation Level 13
Disputes can arise with any contract or sales agreement, including construction agreements. There is no assurance that you can "force" a buyer to buy a project once you have completed. Even a solid contract can be set aside by a bankruptcy filing. There are however steps you can take to increase the odds of payment.... the prior sale of the property and then a construction/development agreement is one step but you should be aware of the risks and impacts if the buyer holds the property and terminates the construction agreement, personal guaranties may also be appropriate. There may be other contractual mechanisms that can be used that would ultimately accomplish the same result. None will be risk-free but you should consider the risks. Hopefully you already have a good real estate attorney in the WA area that has helped you develop the condominium property. You should contact them to explore options.

Let me also add that your risks are greatly reduced in this type of construction when you obtain a greater earnest money deposit. A specialty purpose building would typically require a larger deposit and you may want to consider setting a payment schedule that keeps you ahead of your costs (including the cost of converting the building) if local market conditions permit.

If the overall risks are too high, especially given the current real estate market in many parts of the country, then maybe this particular tenant is not right for you and you should consider finding one who will accept a standard building.

Reputation Level 9
You may have an attorney draft a firm agreement that does not provide for any contingencies which would allow the purchaser to walk. In addition, you may modify the NWMLS forms to eliminate the sole remedy beig the forfeiture of the earnest money.

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Reputation Level 9
I assume you have a prospectus and a contract that ties to it. You should be able with a serious buyer to enter into a contract to sell and a contract to build out the interior, which would be ismilar to a standard construction agreement, one third down, progress payments, last 25% after c of o.

A condo is a common or shared interest real estate. You own the title ("fee simple" in the case of a condo, to the "air space" your unit occupies. In a large building, this may mean that you own the equivalent of an apartment with other units above, below and on all sides around you. In the case of a townhouse (technically a "Planned Unit Development or PUD), you also own the land on which your unit sits and the airspace above (up to a few hundred feet).
What all of these different types of developments have in common is the sharing of common space including walkways, landscaping, parking, recreational facilities and so on. In short, not only are you buying a home, but you're usually also getting the right to use a lot of amenities to boot. In a sense, you're buying into a type of lifestyle. While this may sound appealing to many people, it also has its drawbacks.
Here are some concerns to be aware of before buying into a shared interest piece of real estate.
WHAT TO WATCH FOR
● Does the unit have adequate Covenants, Conditions and restrictions? Conditions, Covenants and Restrictions set the basic rules for use of the development such as minimum square footage, voting rights, size of board and so on. Many older developments only had Covenants, conditions and restrictions that were a page long and left out much that was needed. (Modern Covenants, conditions and restrictions can run to a hundred pages or more).
● Is the development separately incorporated? If not, you could be heading for a morass of legal problems.
● Are there any pending lawsuits against the development (home owner's association)? If there are it could mean poor management. Further, if the Association loses and the award is greater than the insurance, each homeowner could be responsible for the difference. (Some states, such as California, have passed laws exempting homeowners from deficiency payments, provided minimum amounts of insurance are kept).
● Are there clear and reasonable architectural guidelines? These could be vital if you later want to remodel or add on.
● Is the Association solvent? Check its financial statements. This is critical. Is there a comfortable bank balance or is each month hand to mouth?
● Are their adequate reserves to handle maintenance, repairs and emergencies? A rule of thumb is that 25 percent of the annual budget should be put away as reserves.
● Is the project old and in need of repairs? If so, you might be assessed in the future and your monthly dues could go up dramatically.
● If you're buying a new and not fully completed development, how are sales going? If they are slow, is there a chance the developer/builder could collapse leaving many uncompleted units and the existing owners with a real headache?
● Does the home owner's association provide insurance against earthquakes, hurricanes, or tornados? You may need it to get a mortgage (either when you buy for the next buyer when you resell), but not be able to get this insurance individually.
● What is the ratio of owners to tenants? If there are more than 25 percent tenants, you could have problems with noise and maintenance. (.

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