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Posts tagged "legal"

Home» Posts tagged "legal"

What Real Estate Needs to Learn from the Legal Industry

Posted on October 15, 2017 by Mike Kushner in Blog, CPBJ Articles, Tenant Representative/Buyer Agent No Comments

This article was originally published on the Central Penn Business Journal and DukeLong.com.


The issue of conflicts of interest between parties exists in a variety of industries. Ethics rules prohibit a single lawyer from representing competing sides in the same transaction. It’s common sense. You can’t ensure fair and equal representation to competing parties if you represent both sides. And clients want more than just fair representation; they want to feel they have an advocate who puts their interests above all others.

So why then, are real estate agents not restricted from representing competing parties in the same way lawyers are? In Pennsylvania, as in many states across the United States, real estate agents are permitted to represent both a buyer and seller (or tenant and landlord) in the same real estate transaction. It’s great for the real estate agents since they make full commissions, but what about the clients they represent?

The regulations and restrictions (or lack thereof) surrounding a real estate agent’s conflicts of interest when representing both parties is cause for concern. If real estate agents were required to approach conflicts of interest in the same way lawyers do, here is how the real estate industry would be reshaped.

The Legal Model

The American Bar Association published and periodically revises Model Rules of Professional Conduct, which have been adopted as legally binding ethics rules governing lawyers in most States. The Model Rules govern conflicts of interest with both current and former clients. Under the Model Rules (and under the ethics rules of the States that have not adopted the Model Rules), law firms may not represent both parties in a single transaction. This means a buyer/tenant must have separate legal representation from the seller/landlord. This gives clients complete assurance that their lawyer is committed solely to their interests. Moreover, one party cannot be pressured into using the other party’s lawyer, because it simply isn’t an option.

Real vs. Perceived Conflicts of Interest: Does It Make a Difference?

Conflicts of interest between two parties can be real or perceived. While real estate agents may argue that they always take a fair and balanced approach in their real estate transactions, if they represent both parties how that can be guaranteed? If one party doesn’t get exactly what it wants, it may question whether its real estate agent did everything possible to represent its interests. It doesn’t make a difference whether a conflict of interest is real or perceived, for both parties to feel adequately represented they cannot use the same real estate agent.

Why Dual Agency Doesn’t Work

Full service commercial real estate firms and brokerage houses tout the fact that they can “do it all.” They represent both a buyer/tenant and seller/landlord in a real estate transaction through what is called dual agency. However, dual agency is not in the best interest of either party, just the real estate agent who makes commission on both sides.

In dual agency, a real estate agent is more likely to steer buyers/tenants toward properties they represent on behalf of their seller/landlord clients. When it comes to negotiating terms, parties represented by the same real estate agent have less negotiation power and may have to compromise more than they would have if they had exclusive representation. And the list of potential abuses goes on.

The challenge is many commercial buyers and tenants aren’t aware that they can work with a real estate agent who is 100% exclusive to representing the interests of the buyer/tenant, often at no cost to them. There are real estate firms right here in Central Pennsylvania that only represent corporate business space users (buyers and tenants) and have resolved to never represent landlords or developers. Buyers and tenants need to be made aware they have options for sole representation and it’s critical they seek this out as the first step when looking for commercial space.

One Real Life Example

In 2016, the California Supreme Court upheld a challenge to dual agency in the case of Horiike vs. Coldwell Banker. The case has gone on to receive national attention regarding the practice of dual agency and the question of whether a single brokerage company can actually represent the interests of two competing parties in a fiduciary capacity.

The original case was based on a dispute regarding the square footage of a property purchased by the plaintiff, Hiroshi Horiike, who was represented by the same company marketing the property for sale, Coldwell Banker. The court determined that Coldwell Banker did not provide the same degree of care to the buyer as compared to the seller of the property, but owed both the same degree of care and representation.

Many of the world’s largest real estate companies both practice and encourage dual agency. The case of Horiike vs. Coldwell Banker brings to light the inherent conflicts of interest in such practices. Some states, like Colorado, have made dual agency illegal. It’s likely that California will follow suit. Given the national attention of this case, it’s reasonable to think other states will now consider outlawing dual agency as well, or at least putting regulations in place to reign in abuses.

The Issue from a Legal Perspective

Tim Anderson, Partner at Pepper Hamilton LLP, represents a variety of clients in real estate conveyancing, leasing, financing, foreclosures and litigation. He shares his perspective on conflicts of interest in real estate transactions.

“In real estate law, we take conflicts of interest very seriously. For example, we cannot represent both parties to a single transaction. We may represent each party in separate transactions if we conclude that we can provide competent and diligent representation to each affected client, the representation is not prohibited by law, and each affected client gives informed consent in writing,” explains Anderson.

“I routinely caution clients about the inherent risks of dual agency in real estate transactions. I warn clients about the risk that their agent’s representation of their interests may be limited by the same agent’s responsibilities to the other party. I’ve found that clients who agree to dual agency, because they think they can protect their own interests, often do not treat their own agent with complete candor,” says Anderson.

Lastly, Anderson offers this advice, “In my opinion, the real estate industry would benefit from adopting rules similar to the rules for lawyers. This does not necessarily require real estate agents to represent only buyers or sellers (landlords or tenants), but real estate agents should not try to represent the buyer and seller (landlord and tenant) in the same transaction.”

To close, I hope that the real estate industry as a whole will reflect on the ways in which other industries handle the issue of conflicts of interest. To allow even the perception and possibility of the conflicts of interest that occurs in dual agency is unfair and unnecessary.

To tenants and buyers looking for commercial space, I urge you to do your research and find an exclusive tenant representative or buyer’s agent who will strictly represent your interests in a real estate transaction. All parties are entitled to exclusive representation; be sure to seek out yours!


This article was originally published on the Central Penn Business Journal and DukeLong.com.

[Online Resources] Real Estate, buyers agent, conflict of interest, dual agency, exclusive, fair, law, lawyer, legal, mike kusher, Omni Realty Group, Tenant Representation, unbiased

How Tenant-Only Broker Representation Will Shape the Future of Real Estate

Posted on December 8, 2016 by Mike Kushner in Blog, Tenant Representative/Buyer Agent No Comments

Note: This article was originally published by www.DukeLong.com. Click here to read the original version.


Woman drawing business property chartHow Tenant-Only Broker Representation Will Shape the Future of Real Estate. 

Tenant-only broker representation is quickly growing in popularity and moving into the mainstream of real estate. Now more than ever, people looking for space realize they need a broker to solely represent their interests. It doesn’t take much more proof than to examine the success of the two premier exclusive tenant rep firms that are now part of multi-billion dollar companies. The Staubach Company, founded by Roger Staubach who pioneered the specialty of tenant representation,was acquired by Jones Lang LaSalle (JLL) and did $6 billion in revenue in 2015.

Studley, another firm offering exclusive tenant representation, was acquired by Savills, a global real estate powerhouse that did £1,283.5 million in revenue in 2015. If this trend continues, and I expect it will, other brokerage firms will need to adjust their practices to provide what clients want – fair and exclusive representation. Here is how I predict tenant representation to shape the future of real estate.

Technology will change the role of a tenant representative, but not replace it.

With technology making it easier than ever for potential tenants and buyers to find available properties, the future role of a tenant representative will be less about helping someone find space. Rather, tenant representatives will be sought out to provide advice, negotiate and exclusively represent the interests of the tenant/buyer.

Successful tenant representatives will use technology to streamline and automate the ways in which they research properties. This will allow them more time to reinvest in providing clients with their expertise and non-conflicting representation.

Large brokerage firms will need to “pick a side.”

In November 2016, the California Supreme Court upheld a lower court ruling that a listing broker had a fiduciary responsibility to both the buyer and the seller in a “dual agency” transaction. This case dealt with the 2007 sale of a Los Angeles home that was marketed as 15,000 square feet, but in reality was 11,000 square feet. The buyer reasonably felt like the brokerage company had pulled a fast one on him, especially since the house was both listed and sold by Coldwell Banker.

This court decision has potentially far-reaching impact on how commercial and residential real estate brokerages do business. While some may be able to continue doing business as usual and make their disclosures a little more apparent, the large brokerage firms may find it more difficult to do that and still be able to adequately represent both sides of a transaction. Essentially, large brokerage firms will need to pick a side. Will they represent the buyers or the sellers?

I predict we will see more real estate brokers choose to exclusively represent one side or the other so that they don’t risk the appearance of (or real) conflict of interest that just might result in a costly court battle.

Clients will get smart about seeking out exclusive representation.

Potential buyers and tenants are getting smarter about bringing their own representation to the table. Because of recent news stories and court cases, like the one mentioned above, light is finally being shed on the questionable practices of brokerage firms that represent both sides of a real estate deal. In nearly any other industry, this conflict of interest would never fly. Finally, real estate is catching up and buyers and tenants are seeking out exclusive representation to ensure a fair deal.

For many reasons, the growth in tenant-only broker representation is a good thing. It means tenants and buyers are getting equal representation in real estate transactions. It means companies are recognizing the conflict of interest in representing both sides and making changes to offer better transparency and disclosure clients. Finally, the growth in tenant-only broker representation means real estate professionals can and should specialize. People don’t want a Jack of All Trades, they want an expert who exclusively represents one side of a deal.


Note: This article was originally published by www.DukeLong.com. Click here to read the original version.

[Online Resources] Real Estate, blog, broker, buyers, central pennsylvania, changes, commercial, conflict of interest, duke long, exclusive, firm, future, impact, industrial, landlords, legal, news, office, Omni Realty Group, prediction, representation, residential, retail, space, tenant-only, tenants, trends, writing

In the Wake of the Failed Merger, 6 Ways PinnacleHealth and Hershey Medical Center Can Harness New Growth

Posted on November 3, 2016 by Mike Kushner in Blog, Healthcare, Local Market No Comments

Healthcare costs

As shared by the Central Penn Business Journal, the Hershey-Pinnacle merger was recently opposed by the Federal Trade Commission (FTC) and the Pennsylvania Attorney General’s Office. The reason for this decision was explained as the Dauphin County-based hospitals are direct competitors, and that their union would eliminate competition in the Harrisburg region. For Harrisburg area residents and employers, a reduction in (or elimination of) competition may result in lower quality and higher cost health care.

While this ruling is a huge blow to what PinnacleHealth and Hershey Medical Center surely felt was a smart business move, it’s not likely stop the two entities’ from pursing alternative business growth opportunities.

The ACA has made the healthcare environment a market share game. So health systems are pursuing volume drivers for their systems, which means putting primary care and urgent care clinics in strategic locations. Among the popular pathways to growth for hospitals and health systems, we expect to see Pinnacle Health and Hershey Medical Center employ some or all of the following opportunities in the near future.

  1. Increase in ambulatory care facilities (i.e. freestanding urgent care, outpatient surgery and imaging centers and emergency care centers). Out-patient centers are an important and cost-effective alternative to higher cost inpatient-focused acute strategies. A health system can greatly increase the number of patients it can see and treat in a day through the operation of freestanding urgent care locations. This follows the trend of the new hub and spoke healthcare delivery model where the hub of a single network branches out into various locations to increase accessibility and efficiency.
  2. Recruitment or acquisition of medical groups that are in-market, but not fully aligned with the hospital. As healthcare reform continues, the number of insured patients seeking access to care will also increase. Therefore, it’s important for a health system to have the added capacity to monetize this growth. Additionally, patients often choose to follow their physicians regardless of hospital affiliation, meaning those with the most aligned physicians will grow the most.
  3. Clinical program development and service expansions or extensions. Health systems that actively seek opportunities to expand the scope of services they provide, such as adding new procedures, diagnostic categories, or subspecialties into their portfolio, are well positioned for growth. The complexity of healthcare and health insurance incentivizes patients to seek all of their care from a single organization, when possible. The more services a health system provides, the less likely a patient will seek care from a competing network.
  4. Geographic market expansion to establish additional locations of care. More and more, healthcare is beginning to look and act like typical retail marketplaces. One example is a preference for convenient venues and access locations. Health systems that extend their reach geographically can raise their growth trajectory. Most importantly, each location should consider its targeted populations so that the services provided meet the most common demands of that specific area.
  5. Merger or acquisition of another hospital or health system (including assets, “book-of-business,” and affiliated provider network). Establishing new locations through merger or acquisition is a fast track to growth. While the Hershey-Pinnacle merger was shot down, it’s not unlikely that they will seek out other possible mergers that do not conflict in the same way. Let’s face it, mergers provide a lot of benefits, including access to efficiencies through combining resources, and the opportunity to grow market position in key centers of excellence, institutes or hallmark clinical programs.
  6. Joint ventures. When market entry or start-up costs pose challenges, joint ventures remain a viable pathway to growth. While the legal nuances are about as complex as a merger or acquisition, with careful evaluation, the benefits can outweigh the effort. One of the biggest advantages of a joint venture is that it creates shared obligation among the parties involved so that everyone is working toward its sustainability and success.

Some Final Thoughts

Due to the changes imposed by the ACA, healthcare is moving toward a new kind of hub-and-spoke model where the focus is for more care to be delivered in the outpatient setting where costs can be reduced, access can be increased and preventative and post-acute care can be administered in a more efficient manner.

While other health systems have successfully teamed up to expand their reach, such as Penn Medicine and Lancaster General Health; Johns Hopkins Children’s Center and WellSpan Health; and Holy Spirit and Geisinger Health System, these partnerships cover entirely separate markets, unlike the proposed merger between PinnacleHealth and Hershey. If there’s anything that can be learned from the failed merger, it’s that an emphasis needs to be placed on better defining geographic markets to avoid the perception of conflict in the future.

What are your thoughts on the failed Hershey-Pinnacle merger and how this will impact their growth strategy for the future? Join in the conversation by leaving a comment!

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