Commercial real estate attorney: Without litigators, negotiations are vulnerable

Mark Goldstein is of counsel at Bailey Kennedy Attorneys at Law

Mark Goldstein is of counsel for commercial real estate at Bailey Kennedy Attorneys at Law, which last year handled over $100 million in real estate cases. The firm combines real estate and litigation expertise. “We have learned that successful negotiation and drafting of contracts is not enough without the litigation skills to enforce agreements in court,” Goldstein said.

What’s trending in the local CRE environment and how do you expect it to evolve in the next year or two?

Large, national companies dominate the development of real estate in Clark County. We expect the dominance of national companies to accelerate in the coming years.

At times, large national chains are unwilling to make concessions that favor local businesses. For example, office space measured per “usable” square foot by national companies may often be more expensive than Las Vegas tenants expect because national landlords may include space that Las Vegas tenants have considered to be unusable. For example, at least one national office space developer includes a portion of elevators, janitors’ closets, lobbies and stairways.

We have also found that national real estate investment companies often use “institutional” methods for measuring rentable area. One national trust has measured from “drip line” to “drip line” — places on the outside facade where water ran off from the roof — which is likely to be unrelated to a tenant’s usable space.

Bailey Kennedy counsels clients to hire an engineer or architect to measure the space to be leased to inform the client of the true size of the usable area. We believe the client’s engineer or architect must use an objective standard, like that adopted by the Building Owners and Managers Association. Then, whatever number the landlord uses, the tenant will always know how much it will pay per usable square foot, and the tenant will have a more informed basis for negotiation.

What is your role in CRE acquisitions?

We are legal counsel to buyers and sellers of real estate. We specialize in large, complex commercial transactions. We write contracts for these transactions and advise investors and lenders on Nevada law.

In addition, Bailey Kennedy takes pride in helping clients with title reports and resolving environmental and insurance problems. We review and analyze appraisals, inspections, leases and purchase agreements drafted by other law firms.

Describe Bailey Kennedy’s office culture.

The atmosphere is collaborative, brilliant and exciting.

In today’s commercial real estate market, each lawyer must be able to react to new challenges. For example, we helped a public client write new legislation that allowed sophisticated lease purchases of public facilities using funds provided by investors.

Bailey Kennedy also defended a free speech case involving the right of petitioners to collect signatures on open space owned by a firm client.

What has been your most exciting case?

In 2017, we represented the seller of the land that will be used for the Las Vegas Stadium of the Las Vegas Raiders and the UNLV football teams.

Bailey Kennedy also stepped into the gun debate by enforcing the right of the Las Vegas-Clark County Library District to prohibit handguns within the premises of libraries in their district.

What’s the biggest issue facing Southern Nevada’s real estate climate?

Successful local developers and contractors built Las Vegas. Today, much of the development and construction is dominated by national companies often backed by institutional investors. Institutional investors may not be as committed to the Las Vegas community and are often unwilling to take the risks needed to bring Las Vegas to the next level of community.

For example, institutional investor landlords make local tenants responsible for equipment rental charges. We find that making equipment rental charges part of operating expenses converts capital expenditures into expenses that are paid by the tenant. Even though courts often find for the tenant, many years ago, local landlords would not attempt to take advantage of local businesses in this fashion.

If you could change one thing about Southern Nevada, what would it be?

I would like the Nevada Department of Transportation to consider local needs in designing our freeways. It seems that freeways are planned in Carson City without any understanding of Southern Nevada’s need for fast-moving freeways.

Where is your favorite place to explore in Las Vegas?

I love Clark County Wetlands Park. This park has diverse populations of birds and wildlife. There is nothing else like it in Las Vegas.

What is your dream job outside of your current profession?

I would like to help start-up businesses become successful companies.

If you could live anywhere else in the world, where would it be?

I would live in a college town in the Midwest.

Whom do you admire?

I admire John Bailey and Dennis Kennedy, the founders of our firm. I know how hard it is to successfully manage a law firm. When considering a recent career change, my first choice was Bailey Kennedy because of John Dennis’ record of accomplishment at steering their law firm through good economic times and bad.

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