When you are faced with a dispute either with another individual, business, institution or the government, Bennett Boehning & Clary can advise you through the problem to a resolution. Please see the Litigation section of our website for more information.  The most common disputes are:

• Adverse Possession
• Boundary and Neighbor Disputes
• Breach of Contract
• Condemnation Proceedings
• Permitting Agency Disputes

Adverse Possession

Adverse possession is method of acquiring title to property other than by purchase.  The courts through case law and the legislature through statute have imposed strict requirements to acquire title to property by adverse possession.  BB&C litigates cases for both parties trying to establish ownership through adverse possession and parties defending adverse possession claims.  Please see the Litigation section of our website for more information.

Boundary and Neighbor Disputes

BB&C advises clients through neighbor disputes.  Common boundary line and neighbor disputes arise in the development of property or the change in ownership of property.  Common issues are:

• Adverse Possession (see above for more information)
• Boundary line location
• Spite Fences
• Trespass claims

Breach of Contract

BB&C advises clients through all kinds of contract disputes relating to real estate.  Common breach of contract disputes include:

• Breach of purchase and sale contracts
• Breach of easements
• Breach of driveway agreements
• Breach of property management agreements
• Breach of lease agreements

Please see the Litigation section of our website for more information

Condemnation

When the government, or any division of government, targets land for use as a road, a park or any other public purpose, the procedure is known as condemnation. Condemnation requires that the government have a valid purpose for the land taken and that it pay the true, complete and fair market value for the land it condemns. Perhaps you simply do not know if the government is making you a fair offer. Maybe you believe strongly that the government’s offer falls far short of fair value. Maybe you even question the validity of the condemnation and believe you should not even have to sell your property. We encourage you to talk with an attorney to learn your rights and the government’s responsibilities. Our attorneys, with a long history of condemnation representation, await the opportunity to apply our experience and abilities to your case.  If the property legally can be taken, the owner is entitled to a trial by jury to determine damages and the value of the property.  We have represented several land owners in condemnation proceedings, including jury trials.

Permitting Agency Disputes

Parties often run into permitting problems with government agencies.  BB&C represents developers in disputes with administrative agencies.

Home owners associations are formed as mutual benefit nonprofit corporations.  BB&C represents property managers and home owners associations in the following matters:

• Entity Formation
• Annual Meeting Administration
• Due Collection and Lien Enforcement
• Restrictive Covenant Enforcement

If you have problems with a tenant or a landlord, we encourage you to contact us today to discuss your legal options under the lease in question, local ordinances and Indiana law. Landlords and tenants alike have certain legal obligations, regardless whether these requirements are explicitly set forth in the lease.  Some of these issues concern occupancy restrictions, security deposits, apartment habitability and the seizure of personal property.  Examples of landlord and tenant issues are:

• Common Area Maintenance negotiations and enforcement
• Evictions and Collections
• Lease Drafting and Negotiating
• Property Management Agreement Drafting, Negotiating and Disputes

• Transactions, Development and Zoning
  • Contract for Conditional Sales
  • Debt and Equity Structuring for Real Estate Transactions
  • For Sale by Owner Transactions
  • Loan Document Preparation
  • Partnership and other Ownership Structuring
  • Purchasing Real Estate
  • Real Estate Development
  • Selling Real Estate
  • Subdividing Real Estate and more specifically locally in Tippecanoe County
    • Exempt Divisions of Land
    • Major Subdivisions
    • Minor Subdivisions
    • Rural Estates
  • Zoning and Enforcement Actions
    • Rezoning Hearings
    • Special Exception Hearings
    • Variance Hearings

Contract for Conditional Sale

Sometimes a buyer does cannot or does not want to use traditional financing or a seller is offering seller financing.  One way to do a seller financed transaction is a Contract for Conditional Sale.  BB&C can help you structure the deal and draft the various documents including:

• Contract for Conditional Sale
• Memorandum of Contract – a recorded document to put the public on notice
• Escrow Agreement where an escrow agent holds both a Warranty Deed from the seller to the buyer to record when the Contract is paid off as well as a Quit Claim Deed from the buyer to the seller to be recorded in the event that the buyer defaults and the seller uses the remedy to cancel the contract.
• Sales Disclosure Document to accompany the recording of the Warranty Deed

Debt and Equity Structuring of Real Estate Transaction

The three legs of real estate transactions are: (1) identifying the proper real estate; (2) locating and structuring the equity; and (3) locating and structuring the debt.  The real estate lawyers at BB&C assist clients in structuring the equity ownership in real estate as well as negotiating the debt and the loan documents with the bank, individual or other lending institution.

For Sale by Owner Transactions

BB&C advises sellers and buyers through home sale transactions where realtors are not involved.  We review, negotiate and advise regarding the various parts of the transaction including:

• Purchase agreements
• Title insurance commitments and standard and special exceptions
• Inspection reports and inspection addendums
• Ordering, reviewing and correcting surveys
• Loan documents
• Easements
• Driveway agreements
• Subdivision covenants
• Zoning restrictions and permitted uses

Loan Document Preparation Transactions

BB&C represents lenders, whether banks, credit unions, private lending institutions or individuals, in all sizes of financing transactions including senior secured, subordinate or mezzanine financings and unsecured financings to help proactively protect creditors.  We are familiar with the market terms for the documents making up a financing transaction including the following:

• Term Sheets
• Loan Agreements
• Promissory Notes
• Security Agreements
• Subordination Agreements
• Guarantees
• Mortgages
• Assignments of Rents, Leases or Accounts Receivable
• Intercreditor Agreements
• Landlord Waiver
• Pledge Agreements
• Personal Guaranty Agreements
• Deposit Account Control Agreements
• UCC filings

Partnership and other Ownership Structuring

Often individuals form partnerships either to share expertise or capital requirements of a real estate transaction.  BB&C regularly assists investors and operators to form partnerships, family limited partnerships, joint ventures, tenant in common ownership and other ownership structures to hold and operate real estate.  This may be as simple as preparing a limited liability company where equal partners contribute capital on a prorata basis to own a piece of real estate.  Or, it may be as complicated as representing a real estate deal sponsor to sell interests in limited partnerships, limited liability companies, tenant in common structures or another form as securities.

Purchasing and Selling Real Estate

Whether you are buying or selling a single-family house on contract or purchasing acres of land for development, contact us to help you ensure that the transaction is completed properly.  We assist clients in all stages of buying or selling land – from working with you during the negotiation process through closing the transaction and reviewing title work and land use restriction documents.

The process for buyer covers the following steps:

• Identification of the property
• Negotiation of the letter of intent, if there is one prior to the purchase agreement
• Negotiation of the purchase agreement
• Ordering and review of due diligence material including:
  • Survey.  We can help you select the Table A requirements to request from your surveyor depending on lending requirements and the scope of the development project.  Once the survey is complete we can counsel you through clearing title issues such as gaps and overlaps in boundaries with neighboring properties and easements.
  • Title Commitment.  Schedule B to a title commitment contains the property specific exceptions to title such as easements, covenants, deed restrictions, planned development documents, mortgages, and preexisting options to purchase or other liens.
  • Environmental Studies.  Environmental studies may be Phase I or Phase II reports or simply soil samples where the parties know there was an underground storage tank.  We can counsel you through issues that arise in environmental studies and any remediation required for issues found in the studies.
  • For more information please review the Real Estate Development section below
  • Review of the Closing Documents including:
    • Warranty Deed, Special Warranty Deed or Trustee’s Deed
    • Vendor’s Affidavit where the seller certifies certain things such as there are no unpaid mechanics who may file a mechanic’s lien
    • Bill of Sale for the transfer of title to any included personal property
    • Closing Statement or HUD-1
    • Environmental Indemnity Agreement
    • Indiana Real Property Transfer Law Certificate
    • Non-Foreign Affidavit

Real Estate Development

The steps in real estate development include: (1) identification of a property; (2) acquisition; (3) debt and equity capitalization; (4) feasibility analysis including obtaining the entitlements such as zoning and utilities; (5) construction of the project; and (6) absorption of the project whether through sale or leasing into the market.  BB&C can counsel you through the entire process.

Property Identification.  Our clients, their realtors and our firm all have the capability to locate and identify a property for development by the client.  We have deep roots in the local market and often hear of real estate for sale or of investors seeking property to purchase and can make referrals after our clients give us permission.

Acquisition.  BB&C can help clients through the actual acquisition of real estate.  This process includes:

(1)   Negotiation of the purchase agreements including representations and warranties of the parties, timeline and cost sharing of due diligence.

(2)   Arranging for survey, environmental studies, title commitment and other due diligence items.  With the volume of deals that we do, our relationships with these service providers can help with the timing and pricing on these services.  With each of these reports we can help with

1. Survey.  We can help you select the Table A requirements to request from your surveyor depending on lending requirements and the scope of the development project.  Once the survey is complete we can counsel you through clearing title issues such as gaps and overlaps in boundaries with neighboring properties and easements.
2. Title Commitment.  Schedule B to a title commitment contains the property specific exceptions to title such as easements, covenants, deed restrictions, planned development documents, mortgages, and preexisting options to purchase or other liens.
3. Environmental Studies.  Environmental studies may be Phase I or Phase II reports or simply soil samples where the parties know there was an underground storage tank.  We can counsel you through issues that arise in environmental studies and any remediation required for issues found in the studies.

Financing. BB&C represents borrowers on all sizes of financing transactions including senior secured, subordinate or mezzanine financings and unsecured financings.  We know the market terms for the documents making up a financing transaction including the following:

• Term Sheets
• Loan Agreements
• Promissory Notes
• Security Agreements
• Subordination Agreements
• Guarantees
• Mortgages
• Assignments of Rents, Leases or Accounts Receivable
• Intercreditor Agreements
• Landlord Waiver
• Personal Guaranty Agreements
• Pledge Agreements
• Deposit Account Control Agreements
• UCC filings

Feasibility and Entitlements.  We have experience in gauging the interest and feasibility of projects and we often deal with the governing bodies and other interested parties such as the area plan commission, county commissioners, city councils, public and private utility companies, state highway department, drainage board, other checkpoint agencies, neighbors, and home owners associations.

Construction.  During the construction process BB&C can counsel you through:

(1)    Drafting and negotiating your contract with a general contractor, construction manager, or if you are self performing the contracts with your subcontractors; and

(2)    Obtaining lien waivers, resolving performance disputes and clearing mechanics liens.

Absorption. Once the project is developed and ready for occupancy, BB&C can help you either negotiate the sale of the project or the leasing of the project.  Leasing includes building a budget for common area maintenance and understanding how the absorption process affects sharing of CAM, real estate taxes and insurance.  We are able to provide practical counsel because we have practical experience in real estate matters.

Subdividing Real Estate and more specifically locally in Tippecanoe County.  Bennett Boehning & Clary represents landowners and developers before the Area Plan Commission, the County Commissioners, and the Lafayette and West Lafayette City Councils in subdividing land in Tippecanoe County and neighboring counties.  Typical divisions of land include:

 

• Exempt Divisions of Land such as 10 acre division exemptions and exempt transfers of smaller pieces that are added to other lots where an additional primary building site is not created.
• Major Subdivisions where public streets and utilities are installed
• Minor Subdivisions with a maximum of 4 lots from each parent tract
• Rural Estate developments of land that is primarily hilly and wooded.

Zoning and Enforcement Actions.  The Uniform Zoning Ordinance of Tippecanoe County restricts such things as the permitted use of property in different zoning classifications, the size and location of signs and parking requirements.  The lawyers at Bennett Boehning & Clary advise landowners and developers in all types of hearings before the administrative bodies of Tippecanoe and surrounding counties in the following types of hearings:

 

• Rezoning Hearings where the petitioner, landowner or developer, seeks a change in zoning that would allow a different use than the current zoning.
• Special Exception Hearings where the petitioner seeks permission to deviate from the permitted use but not completely change the zoning classification of the property
• Variance Hearings where the petitioner seeks permission to deviate from the zoning code on an item such as the height of a sign for a neighborhood shopping center
• In addition to administrative hearings we proactively work alongside developers to ensure that their planned land use complies with zoning ordinances.

 

Representative Clients and Projects:

• Bridgewater
• Renaissance Place
• Regal Center
• Market West
• Columbia Center
• Cascada Centre