Not every deal is black and white.
The Grey Area is Zac’s weekly LinkedIn column exploring nuanced questions in real estate, natural resources and business law.
This archive is updated monthly. Every quarter, the most popular post is expanded into a long-form article available in The Legal Edge.
Follow Zac on LinkedIn to read The Grey Area every Tuesday.
Weekly Insights
The Grey Area – No. 13: Should I perform legal diligence before listing my high-acreage property?
Most sellers (and their brokers) wait for a buyer to find problems post-listing. At that point, buyer’s diligence is mid-deal leverage, not early-stage information delivery.
Short Answer: Yes. Targeted pre-listing legal diligence on title, water, and minerals can prevent deal-killers and protect price.
Large land and ranch properties almost always carry title quirks: old easements, severed minerals, or unclear water ownership. Identifying those issues before going to market allows sellers to fix problems, frame disclosures correctly, and avoid deal friction.
Contact me if you want to get out in front of your pre-listing legal diligence.
The Grey Area – No. 12: What’s the optimal way to structure a real estate investment deal?
In private transactions, investors often accept equity without even thinking. But when an investor has leverage, structure plays a big part of the risk and cash flow analysis
Short Answer: Start with secured debt, then layer in secured contractual upside.
The optimal structure protects capital first, then ties upside to objective cash-flow events, not internal discretionary decisions. It’s still a “win-win” when all goes well, and an easier road to recovery if not.
The Grey Area – No. 11: Is offering flexibility around “market terms” a sign of weakness or quiet sophistication?
When bespoke transactions lack an institutional framework, standardized boilerplate provisions often create more friction than leverage.
In these deals, effective counsel improves outcomes by focusing less on forcing “market” language and more on crafting tailored solutions that align with the client’s actual risk profile.
Short Answer: A calculated compromise grounded in risk assessment is often the hallmark of true sophistication.
If your deal is more about judgment than form, that’s often where I can add the most value.
The Grey Area – No. 10: Is a real estate investment deal worth the risk? Uunderstand your investment philosophy before you evaluate the deal.
Real estate investors understandably want to jump straight into deal terms and mechanics. Wrong place to start.
Before we evaluate the deal, I ask clients to define their philosophy around risk, returns, and time horizons. Only then can we apply those criteria to the facts of the investment.
Short Answer: If the deal doesn’t fit your criteria, you don’t need an attorney to mark up the documents. Start with the investor philosophy, apply it to the facts, then review the documents – in that order.
If you need assistance in reviewing a real estate investment opportunity, please contact me.
The Grey Area – No. 9: Can a quiet title case turn adversarial—even after the Treasurer’s Deed?
You followed the statute. You received the Treasurer’s Deed. You filed the quiet title action. Routine, right?
Even experienced tax lien investors can fall into the trap.
But here’s the catch: the fight often isn’t about the deed’s validity. It’s about what allegedly survived it.
- An old ambiguous easement.
- A legacy lender arguing validity lien rights.
- A neighbor seeking implied access rights.
Short Answer: A valid treasurer’s deed doesn’t guarantee clean title. The real risk lies in rights that arguably weren’t extinguished.
If your Treasurer’s Deed turned into more than you bargained for, contact me to help clear the fog.
The Grey Area – No. 8: Title Objections in Commercial Deals: Who Holds the Power?
A buyer reviews the title commitment, sends objections, and the seller replies: “We won’t cure.”
So what happens next?
In commercial deals, title diligence rights are purely contractual. The buyer’s ability to object, the seller’s obligation to respond, and the buyer’s termination right all depend on the PSA’s language. Key definitions like “Permitted Encumbrances” and carefully structured timelines shape the leverage.
Some contracts give buyers broad discretion to walk if the seller won’t cure. Others force buyers to close unless a limited set of “unacceptable exceptions” exist.
Short Answer: Buyers must negotiate clear objection, cure, and termination rights or risk being stuck with bad title and no easy out.
The Grey Area – No. 7: A plugged well ≠ clean title
You’re redeveloping land with nonproductive oil and gas wells. The operator agrees to plug the wells and pull equipment. But what about the oil and gas lease? The surface use agreement? Ownership of the mineral estate?
Those rights don’t disappear with the wells and can cloud the entire project.
3 things to lock down in every P&A agreement:
- Condition final payment on release and recording of necessary docs
- Require signed docs up front in escrow
- Use retainage, step-in rights, and performance deadlines to ensure all obligations are met
Short Answer: Plugging isn’t enough — paper the exit.
The Grey Area – No. 6: In Colorado HOAs, when does “maintenance” become a “capital improvement”?
Consider a mountain resort community with old wood-burning fireplaces. If they’re unsafe, is restoration just routine upkeep or is it really a new project? For HOA boards, the line isn’t always clear, legally or politically.
Short Answer: Boards should document the facts, communicate options clearly, and, when in doubt, consider whether owner approval is the safer, more sustainable path.
The Grey Area – No. 5: Lien Cleared. Refinance Closed.
A commercial client I serve as outside general counsel came to me with a mechanics’ lien filed right before a critical refinance. The twist? The client had paid the GC in full—but a subcontractor still claimed nonpayment.
Merits aside, timing is still key.
After a close review of Colorado’s lien statutes, we confirmed the lien had expired after no foreclosure was filed within the six-month statutory window.
The result?
- Lien released without litigation
- Refinance back on track
Takeaway for commercial property owners:
Even bogus liens can disrupt deals. But All Colorado lien rights are subject to strict deadlines. If they lapse, so does enforcement.
Questions about a lien on your property? Feel free to contact me.
The Grey Area – No. 4: Subject-To: Creative Financing or Risky Business?
It’s a popular strategy in today’s market, especially in residential, where low-interest loans are coveted and creative financing is in vogue.
But for commercial, it should be used sparingly for the right kind of asset. Think:
- Distressed deals
- Bridge loans nearing maturity
- Cooperative lenders
Most commercial lenders strictly enforce due-on-sale clauses. Without alignment, you risk triggering default and instantly losing value.
Short Answer:
Residential – Viable, but don’t go it alone.
Commercial – Tread carefully.
The Grey Area – No. 3: Cell Tower Easement Deal Closed
We just closed a complex, multi-layered transaction involving the sale of a telecom easement tied to a cell tower lease.
This deal had some twists:
- A boilerplate purchase agreement that required substantial legal customization
- A carefully negotiated estoppel certificate that protected the client without raising red flags
- Survey irregularities that required cross-indemnities and disclaimers to protect our client post-closing
It took creative structuring, coordination, and patience on both sides — but the deal closed with everyone satisfied.
If you’re a landowner with a cell tower lease, or a buyer working through a telecom easement, these deals are rarely “standard form.” Let’s talk.
Contact me to discuss strategy, risk, and how to get these done right.
The Grey Area – No. 2: Should a commercial buyer pay for owner’s extended coverage—even in a high-value transaction?
I get this question a lot.
It’s not just about cost—LEVERAGE and FUTURE LIABILITY matter too.
Short Answer: If necessary—but only with the right guardrails.
Full column coming soon in the Legal Edge Newsletter. Follow FJGG to read it first.
The Grey Area – No. 1: Just Closed… Tricky Vacant Land Deal.
Represented buyer in a high-value land acquisition in Douglas County, Colorado.
- Negotiated multiple easements with off ramps for required lot line adjustments triggered by neighboring land development
- Structured restrictive covenants to protect future value
- Shifted from real estate purchase, to equity acquisition, and back to real estate purchase from a Seller SPE, all mid-deal
A complex transaction — cleaned up and built for long-term development flexibility.
If you’re a developer or land investor working in Colorado, I’d love to connect.
