Real Estate Law
Gutwein Law’s interdisciplinary approach to real estate transactions offers our clients flexible and creative solutions to difficult problems across a broad range of transactions in the real estate industry. Whether your needs are related to the acquisition, entitlement, disposition, financing, leasing, management, or use of real estate, we have the knowledge, experience, and resources to structure your project, negotiate your deal, and close the transaction.
We regularly represent and advise buyers, sellers, and developers in all types of real estate including:
Transactions, Development and Zoning
- Contract for Conditional Sales
- Opinion Letters
- 1031 Like-Kind Exchanges
- Loan Document Preparation
- Ownership Structuring and Asset Protection
- Purchasing and Selling Real Estate
- Subdividing Real Estate
- Major Subdivisions
- Minor Subdivisions
- Rural Estates
- Exempt Divisions of Land
- Zoning and Land Use
- Variances Hearings
- Special Exceptions
Contract for Conditional Sale
Sometimes a buyer cannot or does not want to use traditional financing or a seller is offering seller financing. One way to do a seller financed transaction is a Contract for Conditional Sale. Gutwein Law can help you structure the deal and draft the various documents including:
- Contract for Conditional Sale
- Memorandum of Contract – a recorded document to put the public on notice.
- Escrow Agreement, where an escrow agent holds both a Warranty Deed from the seller to the buyer to record when the Contract is paid off as well as a Quit Claim Deed from the buyer to the seller to be recorded in the event that the buyer defaults and the seller uses the remedy to cancel the contract.
- Sales Disclosure Document to accompany the recording of the Warranty Deed
Condominiums are a relatively recent addition to Indiana property law that allow individuals to own individual units of a larger structure on a parcel while sharing ownership or use of common areas. Gutwein Law has the skills and experience to advise and guide their clients through the statutory requirements and practical considerations related to residential, commercial, and mixed use condominium development and operation. Common condominium issues are:
- Drafting declarations
- Drafting, interpreting and enforcing covenants
- Covenant amendments
- Imposition and collection of assessments
One step in the process of obtaining financing for a commercial real estate transaction is to obtain an attorney opinion letter. The lender will generally request that the person or business that is borrowing the funds meet certain terms and conditions. Our attorneys have the experience advising clients on commercial real estate matters and are able to prepare attorney opinion letters in all commercial transactions.
1031 Like-Kind Exchanges
The earnings from the sale of property are usually taxed at the time of the sale. However, a 1031 like-kind exchange, or a tax-deferred exchange, provides an exception as it postpones the taxation on the earnings. This essentially allows a real property owner to trade or exchange that property for another, similar property without having to pay taxes on the sale or purchase of either property. The law surrounding 1031 like-kind exchanges is complicated and there are still a number of misconceptions in the marketplace about what they are and how they work.
Gutwein Law will bring your transaction to closing as quickly as possible, while working with you through any misconceptions and advising you throughout the often complex processes and procedures, including finding replacement property, determining who will serve as the qualified intermediary, and structuring creative solutions to utilize equity.
One of the most important parts of a real estate transaction is financing. Financing can take on many forms including traditional bank loans, seller financing, cash purchases, or private debt. Gutwein Law assists clients in structuring the equity ownership in real estate as well as negotiating the debt and the loan documents with the bank, individual or other lending institution.
Gutwein Law also represents lenders, whether banks, credit unions, private lending institutions or individuals, in all sizes of financing transactions including senior secured, subordinate or mezzanine financing and unsecured financing to help proactively protect creditors. We are familiar with reviewing and preparing the following:
- Term Sheets
- Loan Agreements
- Promissory Notes
- Security Agreements
- Subordination Agreements
- Assignments of Rents, Leases or Accounts Receivable
- Intercreditor Agreements
- Landlord Waiver
- Pledge Agreements
- Personal Guaranty Agreements
- Deposit Account Control Agreements
- UCC filings
Ownership Structuring and Asset Protection
Real estate ownership is a significant investment and there are many significant risks involved such as market risks and personal injuries that can be mitigated by properly structuring ownership. Often individuals form partnerships either to share expertise or capital requirements of a real estate transaction. Gutwein Law regularly assists investors and operators to form partnerships, family limited partnerships, joint ventures, tenant in common ownership and other ownership structures to hold and operate real estate. This may be as simple as preparing a limited liability company where equal partners contribute capital on a pro-rata basis to own a piece of real estate. Or, it may be as complicated as representing a real estate deal sponsor to sell interests in limited partnerships, limited liability companies, tenant in common structures or another form as securities.
Purchasing and Selling Real Estate
Whether you are buying or selling a single-family house, either on your own or through a realtor, on contract or purchasing acres of land for development, contact us to help you ensure that the transaction is completed properly. We are able to assist clients in all stages of buying or selling land - from working with you during the negotiation process through closing the transaction and reviewing title work and land use restriction documents.
The process generally includes the following steps:
- Identification of the property
- Negotiation of the letter of intent, if there is one prior to the purchase agreement
- Negotiation of the purchase agreement
- Ordering and reviewing the survey, title commitment, and environmental studies
- Review of the Closing Documents including:
- Warranty Deed, Special Warranty Deed or Trustee’s Deed
- Vendor’s Affidavit, where the seller certifies certain things such as there are no unpaid mechanics who may file a mechanic’s lien.
- Bill of Sale for the transfer of title to any included personal property
- Closing Statement or HUD-1
- Environmental Indemnity Agreement
- Non-Foreign Affidavit
Real Estate Development
The steps in real estate development include: (1) site selection and assessment; (2) purchase; (3) financing; (4) construction of the project; and (5) absorption of the project whether through sale or leasing into the market. Gutwein Law can counsel you through the entire process.
Site Selection and Assessment
Our clients, their realtors and our firm all have the capability to locate and identify a property for development by the client. We have experience in gauging the interest and feasibility of projects and we often deal with the governing bodies and other interested parties such as the area plan commission, county commissioners, city councils, public and private utility companies, state highway department, drainage board, other checkpoint agencies, neighbors, and homeowners associations.
Gutwein Law can help clients through the actual acquisition of real estate which includes:
- Negotiation of the purchase agreements including representations and warranties of the parties, timeline and cost sharing of due diligence.
- Arranging for survey, environmental studies, title commitment and other due diligence items.
During the construction process Gutwein Law can counsel you through drafting and negotiating your contract with a general contractor, construction manager, or if you are self-performing the contracts with your subcontractors as well as obtaining lien waivers, resolving performance disputes and clearing mechanics liens.
- Once the project is developed and ready for occupancy, Gutwein Law can help you either negotiate the sale or the leasing of the project. Leasing includes building a budget for common area maintenance and understanding how the absorption process affects sharing of CAM, real estate taxes and insurance. We are able to provide practical counsel because we have practical experience in real estate matters.
Subdividing Real Estate
Gutwein Law represents landowners and developers before all regulatory bodies including plan commissions, county commissioners, and city councils. We have the knowledge and expertise to help navigate county-specific requirements for the subdivision of land. Typical divisions of land include:
- Major Subdivisions, where public streets and utilities are installed.
- Minor Subdivisions, which create a maximum of 4 lots from each parent tract.
- Rural Estate developments
- Exempt Divisions and Transfers of Land
Zoning and Enforcement Actions
County ordinances restrict not only the permitted use of property in different zoning classifications, but also the size and location of signs and landscaping and parking requirements. Gutwein Law regularly prepares, files and secures approval for rezones, special exceptions, and variances. The approval process may require mediating differences with organized opposition, mandatory public hearings, and when needed, litigation. We advise landowners and developers in the following hearings before administrative bodies of Tippecanoe and surrounding counties:
- Rezoning Hearings, where the petitioner, landowner or developer seeks a change in zoning that would allow a different use of the property than the current zoning.
- Variance Hearings, where the petitioner seeks permission to deviate from the permitted use but not completely change the zoning classification of the property.
- Special Exception Hearings, where the petitioner seeks permission to deviate from the zoning code on an item such as the height of a sign for a neighborhood shopping center.
In addition to administrative hearings, we proactively work alongside developers to ensure that their planned land use complies with zoning ordinances.
Representative Clients and Projects:
Commericial Landlord and Tenant
Gutwein Law has the knowledge and experience to address all facets of the commercial landlord-tenant relationship. Gutwein Law has represented commercial landlords and commercial tenants in negotiating the initial lease, negotiating or enforcing the Common Area Maintenance, negotiating Property Management Agreements, and in dispute resolutions.
- Common Area Maintenance Negotiations and Enforcement
- Commercial Evictions and Collections
- Lease Drafting and Negotiating
- Property Management Agreements
Litigation and Disputes
Gutwein Law has the skills and knowledge to help you resolve your real estate related issues and disputes, whether its individual, business, institution or the government. Please see the Litigation section of our website for more information. The most common disputes are:
- Adverse Possession
- Boundary and Neighbor Disputes
- Breach of Contract
- Mechanic’s Liens
- Condemnation Proceedings
- Permitting Agency Disputes
Adverse possession is the method of acquiring title to land through use rather than by purchase. Indiana has strict requirements which must be met to acquire title through adverse possession. Gutwein Law has represented both, parties trying to establish ownership through adverse possession and parties defending adverse possession claims.
Boundary and Neighbor Disputes
Gutwein Law advises clients through neighbor disputes. Common boundary line and neighbor disputes arise in the development of property or the change in ownership of property. Common issues are:
- Adverse Possession (see above for more information)
- Boundary line location
- Spite Fences
- Trespass claims
Breach of Contract
Gutwein Law advises clients through all kinds of contract disputes relating to real estate. Common breach of contract disputes include:
- Breach of purchase and sale contracts
- Breach of easements
- Breach of driveway agreements
- Breach of property management agreements
- Breach of lease agreements
Condemnation occurs when the government acquires land for a public purpose, such as a road or park. It requires that the government have both a legitimate purpose for taking as well as paying the landowner a fair market value for the land it is condemning. Gutwein Law can help landowners exercise their rights when it comes to condemnation proceedings. Whether determining if the government’s reasoning is valid or finding the fair market value of the land, the attorneys at Gutwein Law can assist landowners throughout the entire process even representing them in jury trials.
Permitting Agency Disputes
Parties often run into permitting problems with government agencies. Gutwein Law represents developers in disputes with administrative agencies. For more information see the Administrative Law Section.
Homeowners associations are formed to operate and maintain common areas and enforce regulations in the declarations of covenants and restrictions. Gutwein Law represents property managers and homeowners associations in the following matters:
- Entity Formation
- Annual Meeting Administration
- Lien Enforcement
- Restrictive Covenant Enforcement