PAPERING THE DEAL: FROM LAND ACQUISITION TO …

1 PAPERING THE DEAL: FROM land ACQUISITION TO DEVELOPMENTW illiam H. Locke, , Dougherty, Hearon & Moody, P. Congress AvenueSuite 2300 Austin, Texas ANNUAL ADVANCED REAL ESTATE LAW COURSEJuly 8-10, 2004 State Bar of TexasSan Antonio, Texas Copyright 2004 Chapter 66 - Page iPapering the Deal_____TABLE OF of land ACQUISITION and Site Development of Study Information Transmittal of Sales Contract Unimproved Property Agent s Receipt and of Sales Closing Services Due Diligence Diligence Objections Documents and Closing of Covenants, Conditions and of Sheltered of Additional Participating Property inRegional Storm Water Detention Detention Pond Construction and Maintenance s Closing Instruction of Development Rights and and Assumption of Subdivision Assignment and Assumption of BCCP Agreement and Participation of of Seller s Interest in Buyer s Consultant s Work Instruction Agreement (Post-Closing Rollback Tax Determination).

2 Agreement (Post-Closing Roll Back Determinationwithin 5 Years Post-Closing)..187 PAPERING the Deal6 - Page Deed of Trust and Security Agreement -Financing Facilities Development Transfer Seller s 1099-S Request for Taxpayer Identification Number and Certification and Closing Post-Closing Closing of Development Documents - Condominium of Development Documents - Condominium of MOB Condominium Sales Contract Condominium Sales - Page iiiPapering the Deal_____Table of AuthoritiesLetters of IntentBecker, We Don t Have an Agreement Just a Letter of Intent, MLI (Univ. of Tex. 1996). Blythe, Subject to the Approval of My Lawyer A Second Bite of the Apple, PROBATE & PROPERTY 19(19).Gosfield, The Structure and Use of Letters of Intent as Prenegotiation Contracts for Prospective RealEstate Transactions, 37 REAL PROPERTY, PROBATE AND T. J. 509 (2002).Homburger and Schueller, Letters of Intent A Trap for the Unwary, 38 REAL PROPERTY, PROBATE AND T.

3 (2003).Meyerson and Armstrong, Letters of Intent Enforceability Issues, PROBATE & PROPERTY 53 (2003).Peterson, The Letter of Intent: to be Enforceable or Not to be Enforceable, Annual Real Law Conference(So. Tex. College of Law 1996).Schopf, Kraus and Flaming, When a letter of intent goes wrong explore if you ll win if it s in the hands of ajury, BUSINESS LAW TODAY 31 (1996).Simmons, Letters of Intent, Annual Advanced Real Law Course (State Bar of Texas 1994).Wilson, Letters of Intent (With Forms), Annual Advance Real Estate Conference (So. Tex. College of Law1999).Sales ContractsDrafting: 2 Laws Affecting Real Estate, 3 Preparation of Documents, 4 Execution and Recording, 8 SalesContracts and Transaction Guide, 9 Deed, Bills of Sale, and Other Transfers, TEXAS REAL ESTATEFORMS MANUAL (State Bar of Texas 2004).Stein, Fisher, and Stern A PRACTICAL GUIDE TO COMMERCIAL REAL ESTATE TRANSACTIONSFROM CONTRACT TO CLOSING, ABA Sec.

4 Of Real Property, Probate and Trust Law (ABA 2001).Wiedemer, TEXAS REAL ESTATE CONTRACTS (2003)ARTICLES:Barton, Commercial Purchase and Sale Agreement: A Comparative Analysis of Suggested Initial Drafts ofContracts for Sellers and Buyers, Advanced Real Estate Drafting Course (State Bar 2000).Baucum, Current State of As-Is, Advanced Real Estate Law Course (State Bar 2004).Jolley and Oxman, Discussion of Typical Model Contracts Used by National Buyers, With RepresentationsThey Request and Require, Including Diligence Issues, Advanced Real Estate Drafting Course (StateBar 2000).Newsome, Due Diligence in Real Estate Transactions, Real Estate Documents, Workouts & Closings ( Hou. 2003).Nolan and Baggett, The As-Is Doctrine in Light of Prudential and Its Progeny, Mortgage Lending Institute(Univ. of Tex. 2001). PAPERING the Deal6 - Page iv_____Oliver, Drafting Real Estate Contracts for Sale Part Two: Raw land , Real Estate Documents, Workouts &Closings (U.)

5 Of Hou. 2003).Oxman and McCaffrey, Selected Issues in Provisions, Annual Real Estate Law Conference - A New Lookat the Fundamentals (So. Tex. College of Law 1999).Simmons, Drafting Real Estate Contracts for Sale Part Two: Income Producing Properties, Real EstateDocuments, Workouts & Closings (U. of Hou. 2003)Sorenson, Fraud and Disclosure Disputes, Annual Advanced Real Estate Law Course (State Bar 1991).Triplett, ACQUISITION of Multi-Family Real Estate, Advanced Real Estate Law Course (State Bar 1995).Waters, Differentiating Among Representations, Warranties, Covenants and Conditions, MortgageLending Institute (Univ. of Tex. 1997).Wigodsky, form Real Estate Contracts, Advanced Real Estate Drafting Course (State Bar 2001).Woody, Representing the Relocating User, Advanced Real Estate Law Course (State Bar 1996).Due Diligence:Dahlstrom, The Platting Maze: How to Get Through It, Advanced Real Estate Law Course (State Bar2004); land Use and Environmental Due Diligence, Advanced Real Estate Law Course (State Bar1996).

6 Locke and Triplett, Field Guide for Due Diligence on Income Producing Properties, Advanced Real EstateDrafting Course (State Bar 2000).Misthal, ADA Due Diligence in the ACQUISITION and Ownership of Real Estate, Advanced Real Estate LawCourse (State Bar 1996).Stahl, Due Diligence Overview, Advanced Real Estate Law Course (State Bar 2004).Thalheimer, A Primer on Platting and Zoning, Real Estate Law: Transactions In-Depth (SMU School ofLaw 2000).Title Insurance:Abiassi, Title Insurance Requirements and Closing Issues, Advanced Real Estate Law Course (State Bar2002).Gosdin, Title Insurance Update: Insuring the GAP, Annotated Endorsements to Title Policy, ALTAC onsiderations, MLI (Univ. of Texas 2003).Jolley, 2004 Title Insurance Endorsements, Advanced Real Estate Law Course (State Bar 2004).Water RightsBarrera, Water Rights Outline and Checklist for the Real Estate Practitioner, Water Rights in Texas (StateBar 2001).

7 Hellewell, Title Insurance Issues for Water Rights Interests, Advanced Real Estate Law Course (State Bar2003).Jolley, Lending and Water Transactions Part One, The Changing Faces of Water Law (State Bar 2003)and Lending and Water Transactions Part Two, MLI (Univ. of Texas School of Law 2003); Methods ofConveyancing and Documentation, The Changing Face of Water Rights in Texas (State Bar 2001);Sale and Lease of Farmer s Water, Advanced Real Estate Law Course (State Bar 2003).6 - Page vPapering the Deal_____Melvin, Transferring Surface Water Rights, Advanced Real Estate Law Course (State Bar 2003); WaterIssues: A Primer for Real Estate Lawyers, Advanced Real Estate Law Course (State Bar 2000);Conveyance of Surface Water, The Changing Face of Water Rights in Texas (State Bar 2001); andBuying, Selling and Financing Water Rights in Texas, MLI (Univ. of Texas 2001).Ruttenberg and Breazeale, Transferring Groundwater Rights, Advanced Real Estate Law Course (StateBar 2003).

8 Ventura, Conveyance of Water Rights, Advanced Real Estate Law Course (State Bar 2003). PAPERING the Deal6 - Page vi_____William H. Locke, , Dougherty, Hearon & Moody,A Professional Corporation515 Congress Ave., Suite 2300 Austin, Texas 78701512/480-5736 FAX: The University of with Honors, The University of TexasPROFESSIONAL ACTIVITIES:Board Certified in Real Estate Law: Commercial, Residential and Farm and RanchLife Fellow, Texas Bar FoundationFellow of College of Law of State Bar of TexasDirector, Texas College of Real Estate AttorneysPast Chairman, Zoning and Planning Commission of City of Corpus ChristiPast President, Corpus Christi (Nueces County) Bar AssociationLAW RELATED PUBLICATIONS AND HONORS:Co-author of State Bar of Texas publication TEXAS FORECLOSURE MANUAL (1990 and 2005)Author/speaker for the State Bar of Texas, Advanced Real Estate Law Course on Field Guide for DueDiligence on Income Producing Properties and PAPERING the deal : From land ACQUISITION to Saleof Residential Lots and To-Be-Built Medical Condominiums (2004).

9 Author/speaker for the State Bar of Texas, Annual Advanced Real Estate Drafting Course and theAnnual Advanced Real Estate Law Course on Risk Management ; Shifting of Extraordinary Risk:Contractual Provisions for Indemnity, Additional Insureds, Waiver of Subrogation andExculpation ; Fair Forms for Shifting Liability for Personal Injuries Between Landlords andTenants and Owners and Contractors Author/speaker for the Advanced Real Estate Law Course: Leases In-Depth of Southern MethodistUniversity on Civil Forfeiture Actions; and at the Annual Mortgage Lending Institute on Seizureof Lender's Collateral Under Drug Enforcement Laws Author/speaker for the Real Estate Law Conference at South Texas College of Law June, 2004 on Protecting Landlords, Tenants and Contractors as Additional Insureds and Indemnified Parties Author for Austin Business Journal: Letting the Fox Protect the Chicken - Additional InsuredEndorsements ; and Due diligence course essential to buying as is The Best Lawyers in America (Real Estate) Who s Who in America6 - Page 1 PAPERING the Deal_____Papering the DEAL: From land ACQUISITION to DevelopmentBy William H.

10 Locke, Your mission, if you choose to accept it, is topaper a real estate deal from land ACQUISITION todevelopment. Unidentified member of theSimCity Seminar Planning Committee.[Then followed the music from MissionImpossible.]This paper is not a scholarly article analyzingcases interpreting contract provisions. Numerousscholarly articles are listed in the Table ofAuthorities. This article is a compendium of formsI have had the pleasure and opportunity tonegotiate and use in recent land ACQUISITION anddevelopment deals. It is divided into two parts: ACQUISITION and Site DevelopmentDocuments and III. Development Documents - ACondominium ACQUISITION and Site DevelopmentDocuments is broken into the following documentpackages: A. Pre-Contract Documents (includingLetters of Intent); B. Contract Documents(including Checklist of Contract Provisions, SalesContracts, and Assignment of Sales Contract); Due Diligence Documents (includingChecklists and Title Objection Letter); D.