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. 4: 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. 3: 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.
Weekly Win – No. 3: 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. 2: 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.
Weekly Win – No. 2: 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. 1: 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.
Weekly Win – 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.
