Under Maine law, in order for a commercial real estate contract to be enforceable it should be in writing. This contract is commonly known as the Purchase and Sale Agreement and sets out the specific terms of the sale of the business property such as the names of the buyers and sellers, the sales price, the location of the property, any business assets included in the sale, and the closing date. A Purchase and Sale Agreement is a vital part of every commercial real estate transaction and should be used, regardless of whether a broker is involved.
When purchasing a business, the term due diligence refers to the period of time during which buyers are provided with an opportunity to investigate the business or property and often includes:
On occasion, due diligence will disclose issues that must be included in any negotiations.
The title search is the process determining whether the commercial property you are buying is actually owned by the seller, whether there are any mortgages or other liens against the commercial property or whether there are any restrictions on the commercial property that may affect your use and enjoyment of the commercial property. The title search is conducted by searching records at the Registry of Deeds. The records pertaining to the property are then reviewed by our attorneys.
Because the title search is such a critical part of the commercial real estate transaction, under Maine law, you are allowed to choose your own title attorney without additional expense to you even if your mortgage lender would prefer to use another attorney or title company to handle the closing.
When purchasing a business it is also important to conduct a search with the Maine Secretary of State to ensure the business entity is in good standing and business assets being purchased are free and clear of liens.
Title insurance is an insured statement of the condition of your title or ownership rights to the commercial property you are buying. Title insurance guarantees that you own the commercial property that you purchase. It protects you from unreported title defects. As agents for the First American Title Company, we believe strongly that title insurance is the best protection against title defects and other title challenges to your commercial real estate. We believe this because we have seen first hand how our clients have benefited from First American’s insurance protection. If insured, First American will defend your title in the courts at its own expense and will pay to correct or clear the title when possible or pay you for the loss. This is the reason banks will not lend money without title insurance – they know exactly how important it is. First American offers price incentives to buyers/owners seeking coverage concurrently with mortgage financing.
A deed is a written document that when properly prepared, signed, and recorded at the Registry of Deeds conveys title to real estate. The deed describes the seller and the buyer, provides a description of the real estate, and any conditions or limitations on one’s use of the commercial real estate.
A mortgage is a written document that creates a lien on commercial real estate as security for the payment of a debt. It is recorded at the Registry of Deeds and is not released from your title until the mortgagor (the lender) is paid in full. Although a mortgage is traditionally given to a mortgage lender, it can also be given to a private individual who lends money. The mortgage is usually accompanied by a promissory note which sets out in detail the terms of the loan. The note will contain such terms as the interest rate, monthly payments, due dates and default provisions. Unlike the mortgage, the promissory note is not recorded at the Registry of Deeds.
In commercial transactions, the mortgagor may also require the borrower to execute an Assignment of Leases and Rents and other security documents.
A closing is a meeting of the buyers and sellers of commercial real estate where they exchange the deed and the purchase price and where all transaction and loan documents are executed.
The settlement statement is a summary of the financial transaction including the purchase price with adjustments, mortgage money, taxes, closing expenses and similar items. The settlement statement is an important record of the commercial real estate transaction for documenting tax basis and deductible expenses.
An easement is the right of one party or organization to use the land of another for a particular purpose. Easements are granted through a document like a Deed, which is then recorded at the Registry of Deeds. In some cases, your neighbor may have a prescriptive easement arising from years of use even though you did not expressly grant him the right to use your property. If this is a concern, you should contact us to explain your rights under Maine law.
A conservation easement is a self-imposed restriction on one’s land, designed to preserve the property in its natural condition forever. For example, you may own a large pristine parcel of land that you would like to preserve. By granting a conservation easement to a qualified land trust, you can reduce your municipal tax burden and possibly your estate tax obligations.
Title problems can prevent businesses from selling or mortgaging their property. Occasionally, clients have commercial real estate title problems that require resolution. We can help you determine the extent of your rights to your commercial property or help you defend any attack on your boundary rights and your title to your commercial property.