This is our blog, where we post stories, insights, and (hopefully) interesting content for everyone to enjoy. Alec is the primary author of all of these posts, he posts about every three weeks. If you have any questions about anything you read, please don’t hesitate to contact us for more information.
What Does a Commercial Real Estate Lawyer Do?
May 1, 2019 — Auz Burger
Commercial real estate laws are what regulate the sales of business properties. It also handles other things like zoning issues, commercial leases, liquor licensing, and property or land use. So, a commercial real estate lawyer is someone who specializes in those laws in an area.
A lawyer in this field oversees your purchasing or leasing agreements, closing information, mortgage information, and even zoning ordinances. They are with you from start to finish in the real estate process, guiding you through a complicated legal field.
Commercial real estate lawyers may handle contract negotiations, various types of commercial leases, and representing clients in court. A large aspect of commercial real estate law is commercial banking, so a commercial real estate lawyer may also handle things like securing a loan for your business and obtaining a line of credit for your business.
Buying commercial property is not a quick, straightforward thing. There are a lot of problems and challenges that can arise including leaseholds, corporate ownership, and environmental issues. None of these things are easy to resolve, so hiring a real estate lawyer, in the beginning, can make things less of a headache for you, because they’re trained to navigate these fields and deal with any other issues that arise during your real estate purchase.
Even the simplest negotiations can be stressful and emotionally taxing but getting emotional during a negotiation isn’t a good thing. Having your commercial real estate lawyer with you means you have someone who isn’t emotionally attached to your business and can navigate the negotiations without emotions getting in the way; this will help you get the best possible resolution to your negotiations.
A commercial real estate lawyer is trained to help you spend time vetting the property you’re interested in buying or leasing, so they can help make sure the property is exactly what you want before you move forward with the deal. Their trained eyes can pick up on little things you may overlook because this isn’t your field of expertise.
Buying or leasing commercial real estate is much different from buying or renting a house. The lease for a commercial property tends to run for longer while buying the property can come with its own risks and challenges that you may need a lawyer for. Your lawyer is there to help protect your finances and get you the best deal out of your purchase or lease.
The laws for commercial real estate are usually pretty complex, and they tend to vary from area to area. They can even vary in the same city in some cases. If you’re seeking to purchase or lease commercial real estate, calling a lawyer beforehand can make everything go much smoother for you, and you’ll have access to someone who can answer your questions quickly.
Imagine being ready to begin construction on this parcel of land you’ve purchased for your business, but just before you break ground you learn there’s a zoning law that’s standing in the way of your construction. Hiring a commercial real estate lawyer, in the beginning, means they’ll be aware of that zoning law and will help you find a different plot of land or an alternative to work with the zoning laws.
Leasing Buildings Commercially
April 30, 2019 — Kristen Cherry
If you’re just getting ready to launch your small business, chances are, you’re looking to lower your risk any way you can, which may include leasing space instead of buying. Yes, real estate can be an investment, but the capital required to launch will be considerably less if you start out renting. To protect your business and the money you are putting into it, educate yourself as much as you can on the ins and outs of commercial real estate law. Know some of the key considerations and savvy questions to ask before signing on any dotted lines.
What’s Going on Around Your Business Space
Visibility, foot and road traffic, and the nature of the businesses around you are all going to hugely impact your business’s chance of success. Find out as much as you can about plans for building, time left on leases/future endeavors in the spaces adjacent to yours, changes in road/parking lot construction — it all matters.
A busy suburb (and they’re getting increasingly busy as millennials start families and head out of cities) is going to have crazy rush hour traffic. Is your potential space easy to get into and out of during high-traffic times? If it’s not, are there plans in place to mitigate that problem, and when are they going to be executed? These are things you need to know.
Another consideration: what kinds of businesses are established or are planning to be established near yours? If there’s an anchor store all but guaranteed to bring in traffic, that could be your golden goose. But if the anchor reneges or abandons the space, your golden goose has flown the coop, which could mean bad news for your business. Or let’s say your business is a workout facility, which is right next to a healthy cafe, potentially a huge win-win, but if the healthy cafe becomes a traditional bakery…you see where we’re going. Consider a co-tenancy clause if the success of your small business is relatively dependent upon the longevity of adjacent brick-and-mortars.
Tenant vs. Landlord Responsibilities
Commercial properties differ from residential properties in myriad ways. If you’ve ever rented an apartment, you likely experienced the joy of simply calling your landlord to report a maintenance issue and then having it repaired in a few days, no invoice sitting on the counter for you. Often, with commercial properties, the tenant is responsible for minor repairs. The landlord is required to make the property inhabitable and may also be required to make structural repairs to the building, but smaller repairs may be up to you to handle. Similarly, financial responsibilities may be divvied up between landlord and tenant, i.e. you pay for the utilities, he or she pays the property taxes.
If you share common space — bathrooms, hallways, fitness rooms — with other businesses in the building, tenants may be paying for that in included square footage and may be responsible for maintenance of those areas, or that may be one area where the landlord maintains responsibility for upkeep. These things should be hashed out and put in writing up front to prevent conflict in the future and to assist you in monthly budgeting.
Option to Buy
In that same growing suburb, new businesses are coming in and are ready to buy up space. You may not be ready to do that now, but you want to be given the option if your landlord decided to sell down the road, right? That’s where the Right of First Refusal comes into play. If you have the financial means to buy the space/building, you’d hate to have it sold out from under you, forcing you to relocate.
Launching a business or relocating–either option is overwhelming. But in the flurry of to-do lists, don’t let your leasing space just be “find a cool place we can afford.” Commercial leasing laws vary by state, but in some, you will be required to pay the rent on the remainder of your agreement even if you choose to move out of the property. To protect your interests and stay on the right side of the courtroom, it’s critical to educate yourself, not only to ensure that you select the right space for your new second home, but to help you sign the healthiest lease agreement possible.
Let’s Plays and Copyright Infringement
April 24, 2019 – Auz Burger
With the rise in Let’s Play videos, where someone records themselves playing a video game, then puts the recording on YouTube, it has come into question whether or not these videos are breaking any copyright laws. There has not been a precedent set yet on this issue, because no game developers have taken any Let’s Players to court over copyright infringement.
This is in part because game developers can see an increase in sales after their game has been aired on a high-profile streamers’ YouTube channel, so many seem somewhat reluctant to take these cases to court. For example, Ryan Clark, the design of the independent game “Crypt of the Necrodancer,” told the New York Times that he saw a $60,000 increase in sales after famous YouTuber Felix “Pewdiepie” Kjellberg played the game on his channel.
One of the major arguments against Let’s Plays is that for games with a storyline if you watch someone else play through the narrative, you now have no reason to buy the game yourself. While this is valid in some cases, there has been an abundance of evidence that sales can go up on a game if it is streamed. It is unclear though if Let’s Plays have harmed sales of any games.
The Digital Millennium Copyright Act (DCMA) gives copyright holders the right to take action if someone is displaying, reproducing, or distributing their work. Game developers have the rights to have entire playthroughs of games removed from a YouTube channel since there is still much debate on whether or not Let’s Plays count as fair use. They are completely reproducing the game for people who did not pay for it, so it can easily be considered copyright infringement, but the gaming industry seems reluctant to do so, allowing Let’s Players to flourish.
“The amount of content used [in a Let’s Play]—the fact it goes to the heart of the game itself—is way in excess of what any court up until now has said is fair use. You use too much of the content for it to qualify for fair use,” Mona Ibrahim, a video game attorney with the Interactive Entertainment Law Group, told Kotaku.
In the movie and music industry, a video similar to a Let’s Play would be removed instantly, but yet when it comes to streaming video games, there is an overall reluctance in the desire to bring these to court. Lawyer Mira Sundara Rajan, who specializes in intellectual property, says that once the precedent is set it has the potential to “transform the industry completely, and qualitatively change the relationship between the people who are playing games and the people making them.”
Taking a Let’s Play to court over copyright infringement could have major ramifications for Let’s Players everywhere. Let’s Play channels are some of the biggest on YouTube, so having this legal precedence could be disastrous financially for YouTube. There are also other programs that would feel the shift even harder than YouTube, like Twitch, which is primarily used for Let’s Plays and live streams of games.
Rajan said that “if there’s a symbiosis in the industry between those groups [gamers and developers], and there’s kind of a balance that’s been achieved, it may well be that things go ahead without the intervention of courts and copyright intervention suits… [but] it’s really hard to predict.”
There are some game developers who have given licenses or blanket permissions on their websites for their games to be used in Let’s Play videos, but not all are willing to do this.
Nintendo chose to enforce its copyright claims on their video games in the early days of Let’s Plays, by creating an affiliate program where the streamers are required to give the company a portion of their revenues. This is fair since they are making millions playing these games, and the developers are only getting potential sales out of the deal.
Currently the Let’s Play industry is a gray area legally speaking, but eventually, a developer will take a streamer to court and the precedence will be set, officially drawing the line in the sand for what is and is not considered copyright infringement for Let’s Players.
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