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Green Leasing Goes Mainsteam
The “green lease” is becoming more commonplace in commercial real estate as energy usage and sustainability affect property operating costs and impact a landlord’s ability to attract energy-savvy tenants.
A green lease doesn’t replace existing lease forms, but provides a framework to address energy and sustainability issues in a leasehold relationship. The primary goal: landlord and tenant incentives to reduce energy consumption. Typical issues:
Transactional energy disclosure laws in some states are also motivating green lease provisions. California, Washington, New York, Texas, and others require landlords to disclose energy consumption history prior to lease execution and/or building sale. Tenants in such states increasingly demand material lease provisions to require annual “green” representations by the landlord and ongoing compliance with LEED certification.
The American Society of Testing and Materials (ASTM ) should finalize by mid-2010 the Building Energy Performance Assessment (BEPA) as part of its new standard ASTM WK24707. Landlords will be able to use a BEPA to assess their property’s green condition, and prospective tenants will be able to competitively assess multiple properties.
A New Uncapping Case Favorable to TaxpayersBy Harley Manela , Mall Malisow & Cooney, P.C.
Until the Court of Appeals ruled in Klooster v City of Charlevoix __ Mich App__, __NW2d __, (2009 WL 4824971), practitioners assumed that the death of a joint tenant leaving a sole remaining owner was a transfer of ownership leading to an uncapping of value. The Klooster court disagreed. The Klooster facts are common. Husband and wife first acquired the property by warranty deed. Later, wife quitclaimed her interest to her husband. Sole owner husband then quitclaimed his interest to himself and his son as joint tenants with rights of survivorship. When the husband died, the City of Charlevoix argued that his death was a “transfer of ownership” under MCL 211.27a(3). The Tax Tribunal agreed.
MCL 211.27a(7) provides exceptions to “transfer of ownership” that lead to uncapping. One exception is a transfer that creates/terminates a joint tenancy if 1) one tenant was an original owner, and 2) “if the property is held as a joint tenancy at the time of conveyance”, one of the parties was an original joint tenant. MCL 211.27a(7)(h). The Klooster court held that the death was not a “conveyance” since there was no instrument in writing that affected title.
Are the Michigan Bankruptcy Specific Exemptions Constitutional?
In Michigan, a debtor filing for bankruptcy has the option of electing the “federal exemptions” provided in Section 522(d) of Title 11, or may elect to take advantage of exemptions provided for under state law. MCL §600.5451, effective in 2005, added provisions for exemptions, but only for debtors filing for bankruptcy. There appears to be no explanation as to why §600.5451 is for use exclusively in a bankruptcy setting.
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March 11-13, 2010