Cohen says it is a much more difficult process if the developer does not know exactly what they intend to develop. His recommendation: You need to at least have a vision of how the finished product will look and then an attorney will be able to craft the CC&Rs to reflect that vision.

“There has been a shift in the real estate industry over the past few years as a result of increased pressure from online sales, and developers are getting more creative with their projects,” Cohen continues. “Developers are no longer simply developing typical power centers with one extremely large anchor store—such as Walmart, Target, Home Depot, and Lowe's—and several ancillary anchors—such as Best Buy, Ross, Bed Bath & Beyond, and Marshalls.”

Now, he notes, projects are becoming much more complex as there will be multiple uses—retail, office and residential—within one development and that creates a lot more issues when trying to draft CC&Rs. Therefore, calls it “crucial” for an attorney to understand what uses will be present in a project and the interplay between the different uses and, ultimately, what the developer's desire is in terms of whether they will maintain control of the project for the long haul or whether they will build it and, upon completion of construction, sell it. All of these decisions affect how the CC&Rs must be drafted.

(Could this be the biggest challenge for commercial real estate developers today? Weigh in.)

In part two of this exclusive interview series, Cohen will discuss implications for a buy and hold owner. That scenario requires a different approach to CC&R drafting.

ATLANTA— New synergies have been created as retail has changed. The live-work-play environment allows developers to get more out of a property.

However, there are questions that must be answered. For example, how do you implement covenants, conditions and restrictions that appropriately work to segregate costs, such as parking and maintenance. Indeed, there are challenges.

Indeed, there are provisions you should consider when drafting covenants, conditions and restrictions (“CC&Rs”) for mixed-use developments. Plenty of them. GlobeSt.com caught up with Jeremy Cohen, a partner at national real estate law firm Hartman Simons, to discuss the legal aspects of multifamily projects within retail developments, including how to work within the frameworks when there are different components with different costs and needs.

“First, you need to have a general idea of what the project is going to look like and the developer's vision before you can begin drafting CC&Rs,” Cohen tells GlobeSt.com. “An attorney can only draft what they understand and what their client, the developer, requests.”

Cohen says it is a much more difficult process if the developer does not know exactly what they intend to develop. His recommendation: You need to at least have a vision of how the finished product will look and then an attorney will be able to craft the CC&Rs to reflect that vision.

“There has been a shift in the real estate industry over the past few years as a result of increased pressure from online sales, and developers are getting more creative with their projects,” Cohen continues. “Developers are no longer simply developing typical power centers with one extremely large anchor store—such as Walmart, Target, Home Depot, and Lowe's—and several ancillary anchors—such as Best Buy, Ross, Bed Bath & Beyond, and Marshalls.”

Now, he notes, projects are becoming much more complex as there will be multiple uses—retail, office and residential—within one development and that creates a lot more issues when trying to draft CC&Rs. Therefore, calls it “crucial” for an attorney to understand what uses will be present in a project and the interplay between the different uses and, ultimately, what the developer's desire is in terms of whether they will maintain control of the project for the long haul or whether they will build it and, upon completion of construction, sell it. All of these decisions affect how the CC&Rs must be drafted.

(Could this be the biggest challenge for commercial real estate developers today? Weigh in.)

In part two of this exclusive interview series, Cohen will discuss implications for a buy and hold owner. That scenario requires a different approach to CC&R drafting.