Lot Lines: Disaster lessons for property owners

Last Updated on Thursday, 6 October 2016 02:05 Written by Chris Griswold Monday, 20 June 2016 02:49

Courtesy the Journal Record
by Ted Streuli

There were two tragic incidents in Orlando, Florida, this week: the mass shooting at a nightclub that left 50 people dead and a 2-year-old killed by an alligator on Disney property.

I asked Oklahoma City attorney Chris Griswold what commercial property owners and managers can do to limit their liability in such extraordinary circumstances.

The property owner might not have liability in the nightclub shooting, but it’s something an owner would like to prevent. Oklahoma allows licensees to carry firearms, but Griswold said that can be prohibited by a commercial landlord. The owner or his agent must post a sign saying guns are not allowed on the property, and it then applies to any part of the privately owned building that’s open to the public. That means if it’s posted, no one except law enforcement officers can carry a gun into reception areas, elevators, hallways, dining spaces or other public places.

There are exceptions, Griswold explained. Landlords can’t prohibit gun owners from locking their weapons in their cars parked on the property, and they can’t prohibit a tenant whose office is not open to the public from carrying a gun if he can enter without passing through a public space.

For multifamily housing, there would have to be a stipulation in the lease.

Carrying a gun into a privately owned building that prohibits firearms is not a criminal act. The landlord may order the person off the premises; if he doesn’t comply and the police are called, he can be fined $250. The penalty isn’t stiff, but landlords and their property managers who have posted the appropriate sign have the right to remove people who are armed.

As for the alligator incident, Disney’s lawyers have likely been hunkered down, frantically looking for a way to minimize the company’s liability. As Griswold noted, the whole point of Disney is to entertain families with children, and the company has a responsibility to do so in a safe manner.

The family assumed no risk of a gator attack, and they may argue that no reasonable person would expect an alligator to come after a child on theme park property. Disney could have marked the dangerous area or hired a company to remove the alligators. At the very least, they could have posted warning signs.

Having warned the public that a danger exists, said Griswold, can help mitigate the liability when something goes wrong.

Read more: http://journalrecord.com/2016/06/16/lot-lines-disaster-lessons-for-property-owners-opinion/#ixzz4C8CEU1Ob

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Sellers Using AAI (All Appropriate Inquiry) to Manage Risk

Last Updated on Thursday, 14 July 2011 04:03 Written by Chris Griswold Wednesday, 1 September 2010 09:24

If you’re somehow involved in the commercial real estate business, you’ve become familiar with the concept of “All Appropriate Inquiry,” otherwise referred to as “AAI.”  The Environmental Protection Agency has promulgated AAI to, more or less, increase the steps which a reasonable buyer should take in the process of determining/evaluating whether the property they’re buying is, to the extent possible, free of excessive hazardous material.  Today, I want to expand the way people have traditionally viewed AAI.  Read more below….

Sellers Using AAI To Manage Risk

You already know that conducting a Phase I is, as a rule, required of any buyer in order to, among other things, determine a current “baseline” at the time of purchase.  Moreover, you know that the engineering firm conducting the Phase I will usually advise the buyer whether a Phase II is, in their opinion, necessary.  Accordingly, people have come to view AAI as really a safeguard for buyers.  However, sellers should consider the benefits of having a Phase II conducted at their own cost and expense – regardless of the engineering firm’s recommendation.  Why?

First, most purchase contracts make the seller indemnify the buyer for the presence and clean-up of hazardous materials.  As the seller, when you weigh the risks associated with indemnifying the buyer against the time delay, inconvenience and expense of conducting a Phase II, sometimes, it might just be worth it to go that extra step in establishing a “harder” current baseline.  Maybe not in every deal, but, for certain deals (e.g., where the property is adjacent to I-3 or a strip of railroad tracks), you may sleep better knowing that you conducted a Phase II so as to better prevent that baseline from “moving around” in the future.

Second, just because the current buyer’s specific uses/needs don’t trigger any alarms after the completion of their Phase I study doesn’t mean that some future, subsequent purchaser’s specific uses/needs won’t call your current “baseline” into question when hazardous materials eventually appear on the property (and odds are they will) and every other owner in the chain of title throws up their hands and says “…we didn’t do it.”  That’s when your Phase II looks really good against a bunch of other Phase I’s….  Something to think about.

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“I commend Chris Griswold for his efforts in a recent transaction for keeping distant legal departments of large companies informed.  Chris has always been a real asset in bringing people together and he has the ability to center the focus on the transaction.  It’s good to have qualified, energetic, and capable legal support ready to move the process along.  My thanks to Chris for his efforts in this most recent transaction.”

Irmon Gray / Broker / NAI Sullivan Group / Oklahoma City, Oklahoma

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A Right of First Refusal in Conjunction with a Simultaneous Closing

Last Updated on Thursday, 14 July 2011 04:03 Written by Chris Griswold Thursday, 1 July 2010 09:24

The weather has been crazy with record snows and ice, record hails and record floods.  Locusts could be next….  More importantly, I hope everyone’s 4th of July was well spent.  Regardless of your political preferences/affiliations (and even with the current economy which appears to be improving), we’re all lucky to be alive and live in a country where property can be privately owned, where there are no debtors’ prisons and where everyone has a voice.  Surely, the most challenged among us is more fortunate and privileged than most of those who live outside our borders….   God Bless America.  Today, we’ll briefly cover the value of using a right of first refusal clause in a simultaneous closing situation.  Read more below.

A Right of First Refusal in Conjunction with a Simultaneous Closing

If you’ve never been party to a closing whereby the seller simultaneously takes title to a piece of property just to immediately convey it away, then it’s only a matter of time.  While these types of transactions are fairly common, they’re not always simple.  Why? Well, sometimes sellers have difficulties acquiring title to the property they’re attempting to sell which, depending on the factors involved and the price tags at stake, can put the buyer in the hurt locker.  How so?

Scenario: Imagine you’re the buyer in a transaction where you’re attempting to acquire title to 3 different parcels of property from 3 different sellers for the purpose of creating 1 large, retail development.  To boot, one of the sellers doesn’t currently hold title to their parcel – we’ll call him “Joe.”  Joe’s parcel is the most important piece of the development puzzle.  Without Joe’s parcel, things won’t work and, furthermore, the commitments you’ve received from retailers on the other 2 parcels depend, and strictly condition their commitments, upon the inclusion of Joe’s parcel.  So, basically, you’re up a creek (and in trouble with everyone) if Joe can’t acquire and convey good title.  You get the picture.

That’s when a right of first refusal comes in handy.  Without incurring a lot of excessive legal fees, you (as buyer) can get a right of first refusal to purchase “Joe’s” parcel directly from the entity otherwise selling to Joe.  Among other safeguards, this particular clause should be written directly into the contract Joe has with this selling entity.  You’re sure to get push-back from Joe on this (since Joe doesn’t want you cutting him out of the picture) but, at the end of the day, the documentation can be written up to protect both you and Joe.

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“Chris Griswold has always been proactive and professional.  He takes the time to work with us and tailors his approach to our situational needs.  My favorite thing about Chris is that he will let me know if there is an easier, less-expensive approach.  We look forward to working with him well into the future.”

Carl S. Milam / President / Western Concepts Restaurant Group / Oklahoma City, Oklahoma

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