There is an old saying, if God had designed a horse by committee, he would have got a camel. Sometimes, too many people get involved in a project and something that should be simple becomes overly complicated. I have often raised this over the years when serving on non-profit boards and the board is asked to review and approve a contract. So many times, a room full of the community’s brightest business leaders and lawyers will scrutinize a simple document, line by line, and suggest changes after the board’s counsel, executive director and chairman, or all 3, have already carefully reviewed and negotiated the entire agreement. An agreement by committee, I always argued, was a camel.

I was reminded again of the agreement by committee recently as I negotiated the purchase of property from a religious organization. In this case, the organization’s board could not decide what it wanted to do. The organization was represented by 3 or 4 highly qualified brokers and a pro-bono attorney (who did not have a real estate background). So, it became obvious that we were dealing with 2 committees in negotiating the contract: 1) the organization’s board, and 2) the broker/attorney advisers.

We had no direct contact with the board. All communication initially went through one of the brokers. But, communication came back from any one of the brokers and the signals were different. It was difficult to know exactly what the seller wanted. Consequently, negotiations eventually broke off. I thought that there was a price gap. My client thought that the disconnect was something else.

A few months later, the original broker asked me to resubmit the last letter of intent we had provided and confirm the purchase price. I did so. The broker then asked me to confirm a few other terms which were specified in the LOI. I finally told him that the LOI was clear, but perhaps we should present a contract and spell out all the terms to clarify. Instead, we had a conference call with all the brokers. This was the first time I was able to speak to all of them. They explained how they were all “volunteering” to help this organization and how they would appreciate my help in getting the deal done. I said that the best way we could get this done would be to move on to a contract and stop talking about a theoretical deal. They agreed and I finally was able to prepare and send a contract.

However, they were silent for a few weeks. I think that they had a few calls, maybe even meetings with my client as the client told me that the board was concerned about having to vacate the property on short notice since closing was tied to approvals. We weren’t exactly sure, but it would be good to actually talk to someone about this as we could easily work it out. But, the brokers needed to talk to the board and come up with a solution. I wasn’t sure who was going to come up with this solution, but if they asked me, I could do it in a second. The brokers’ solution was for all of us to meet at the property. A meeting was scheduled and then re-scheduled 3 times until it was finally cancelled. No reason for the meeting or the cancellation was ever provided. Finally, the broker emailed me to tell me that they were solving a problem and it would involve my client signing some sort of note at closing.

Remember, each person on this broker committee is well respected and highly qualified. But for some reason, they got brain freeze here and missed the obvious solution. Perhaps they got so confused by their client, the board, in trying to address the issue, that they created a camel. Regardless, after all the delay, I offered a simple, short paragraph to the contract, and buyer agreed to enter into a post-closing occupancy agreement allowing the seller to occupy the property for up to 120 days after closing. Suddenly, we had a horse again.

Working with others to prepare a contract absolutely can be done. Two heads are better than one. But, if you try to do it as a committee where no one takes responsibility or the lead, it isn’t going to happen. Nothing against camels, but they have no place in your documents.

You know that I like to quote Jimmy Buffett songs. In this case, I have been reflecting on how much my life as an attorney has changed since I started practicing back in the late 80’s.  I have been negotiating a lot of lengthy documents lately.  I don’t know if it’s been busier than normal but it got me to thinking back to those early days.  I was a young, somewhat aggressive associate at a large state-wide firm based in Ft. Lauderdale.  Like my fellow associates in the classes ahead of me, I guess I had a certain arrogance when it came to document negotiation.  We had the “biggest” clients, the best lawyers and the best documents.  But I found out quickly, when left to handle negotiations on my own, that more senior lawyers, particularly partners at other big firms, loved to take advantage of young cocky associates like me.  They basically bullied me because I didn’t know as much as I thought I did.  As a result, I had to show deference to the gray hairs until I could re-group and confer with my partners.  Fortunately, I had great mentors who taught me a lot and allowed me to develop my skills and style.

Negotiating and drafting back then was before the technology boom.  Computers had not yet found their way to attorneys’ desks.  We had to mark up documents by hand (and use Dictaphones) and send them to word processing and then wait a day or 2 to get work back.  We then mailed or hand delivered documents to the clients and to the other side (sometimes we even faxed!), with hand written red-lining.  We discussed changes on the phone and met in person to actually negotiate (and close).  We had to look our opponent in the eye to make tough demands.  It allowed us to build relationships and trust our adversaries and forced us to pick and choose our battles.  We did not argue, or even comment on, minor provisions and boilerplate.

Flash forward to 2017.  I am generally the old guy now in negotiations and deals.  I always try to keep this in mind and do not purposefully take advantage of a younger opponent.  But sometimes I have to make an exception.  Sometimes I come up against a young attorney from one of those big firms who thinks he/she knows everything and can’t be reasoned with.  Then, I remember how the senior guys in the old days handled it with me.  If the young attorney isn’t smart enough to retreat, make the right decision or ask for help, then their client will suffer or he/she will suffer the consequences when the client figures it out.  When I am told “we never do it that way” or “we can’t do it that way”, I’ll tell them to pull out their firm directory and find a partner among the 500 plus attorneys in the firm who has been around a while and ask what he thinks about the words “can’t” and “never”.

I have respect and patience with young attorneys from smaller firms or who are solo practitioners and are willing to learn.  I particularly appreciate those who tell me that they don’t know something or have never done something before and need time or need help.

The biggest changes, however, is that we don’t seem to talk any more.  We provide or receive documents.  The documents are reviewed, marked up and returned.  We use e-mail.  We don’t establish any personal connections or relationships and therefore, never gain a sense of trust or understanding.  We don’t take any time to get to know each other.  We simply finish the documents, finish the deal and move on.

Are we doing a quality job.  I think we continue to do our jobs technically well.  However, I think that there is an entire generation of real estate attorneys and other real estate professionals that are missing out because of the lack of human contact with their colleagues and opponents.  There is much to be learned from the other side.  I am thankful that I had that opportunity.


        Negotiation of complex real estate documents is, by its nature, adversarial. Each side has to stake out its position and fight for the points that are important to them. Attorneys and brokers, as advocates for their clients, understand this. Each will be zealous in making their arguments. While the substance of negotiation is adversarial, the process of preparing the documents, generally speaking, is not. One side prepares a draft, the other side reviews the draft and provides comments. Revisions are made. The process continues until a final draft is agreed upon.

            As technology has made life simpler, this process has evolved. The person reviewing the document now makes comments and revisions directly on the draft provided using the Track Changes feature in Microsoft Word, or some other compare write or redlining program. When the draft is returned, the preparer can accept or reject the revisions and make additional or new changes. A new Track Change or redline is generated and returned. This process makes it easy for buyers and sellers, borrowers and lenders or landlords and tenants to easily see and discuss specific revisions. Negotiations can still be heated, but the parties can trust the process and that agreed changes at each stage are being made. Technology has made it possible to negotiate documents with little to no personal contact.

             Even before we had this “fancy” computer technology, attorneys usually endeavored to assist opposing counsel in reviewing document revisions from draft to draft. When I started practicing in the 1980’s, we hand marked or redlined our documents at every draft to show clients and opposing counsel everything we changed. And our opponents did the same. We underlined every word, sentence, clause and paragraph we inserted with a red pen (thus, redlining). We put a carrot or asterisk everywhere we deleted language so that the reader could compare the new document to the prior draft. We cautioned that the redline might not be accurate so the reader should carefully review the entire document in case a change was missed. In other words, though we were adversaries, we acted as colleagues, friends, gentlemen (and women). We treated each other with respect.

             So with this background in mind and given that technology makes it easy for everyone today to “help a fella out”, why would anyone in the real estate business today go out of their way to make it difficult to review a document? My latest story involves a client with A++ credit seeking to lease about 65% of a landlord’s class B office building as well as 100% of his vacant lot, adjacent to the building. Client will be doing all of the TI at client’s cost (about $350,000) and the lease is 10 years with 2 five year renewals. The landlord’s representative is his son-in-law. The landlord sent the lease draft in .pdf format. This is not unusual and I requested a copy in Word. We got no response back for over a week until the representative called and demanded our comments. When we again requested a copy in Word, the representative, and then the Landlord told us no such copy existed. We ran the .pdf through a .pdf converter program and I provided my revisions and comments using Track Changes. I will admit, my revisions and comments were substantial. This particular client is in high demand and is used to getting its way.

             We heard nothing for 2 weeks. When we did, the landlord’s representative sent us what we presumed to be a revised lease. Again, it was in .pdf format. There was no redlining or Track Changes.   We were told that this would be the last draft and any remaining changes had to be by addendum. When I asked for a redline or at least a Word version so that I could compare the lease to my draft I was flat out told no.   Why would the landlord do this? What is his purpose other than to be nasty? We can certainly battle it out over the terms that we don’t agree on but why make it difficult (and therefore expensive) for us to review the lease? I am now reviewing the lease line by line and finding that the landlord has made changes to provisions that I did not even comment on. Is the landlord doing this because he is angry that I marked up his original lease?

             I think what this landlord is really telling my client and me is that IF we ultimately sign this lease, we are going to have a very difficult relationship. Everything is going to be a battle. When you’re in a battle over the process of negotiating a document rather than the terms of the document and when you can’t trust the other side to be honorable in the drafting of the document, you probably can’t trust them to honorable in any dealings in the relationship.

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    Welcome to Assouline & Berlowe’s Florida Real Estate Law and Investment Blog with news, insights, and commentary for investors, developers, and their advisors.


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