LOS ANGELES-When was the last time you read a really interesting insurance provision in a loan agreement? Unless you're one of those brave people who writes insurance for a living, the answer to the question is either (a) never, or, if you've ever had the misfortune to suffer a serious casualty to your real property, (b) about two days after the casualty.
These dry and fairly standardized provisions typically cover the types of insurance required to be carried, extension of the coverage to the lender, waiver of the rights of the parties and their insurers to sue the other parties, and provisions giving the lender the right to control the insurance proceeds if there is an insured casualty.
While normally lengthy and detailed, these provisions actually do not—and probably could not—deal well with several real-world issues that can erupt when a serious casualty strikes.
In a perfect world, shortly after the casualty occurs the insurer would send the lender or landlord a check in accordance with the provisions of the loan agreement, and the lender would dole out the funds as repair expenses are incurred. And sometimes that even happens.
But in this imperfect world, casualties can reveal shortcomings in the original design, building and zoning laws change, experts and insurers disagree as to what really needs to be done to restore the property, and lenders can be slow to get their arms around the problem and be comfortable releasing proceeds. In the meantime, the project's tenants find new homes and the business interruption insurance ticks away.
Particularly where the casualty reveals structural, geotechnical or design issues, resolution will require calling in experts to plan the proposed restoration. The owner will hire the primary experts, but the lender will want its experts to review the owner's experts' recommendations, and the insurer will retain more experts to propose less expensive fixes. Whatever eventually results from that maelstrom of competing expertise will then have to be approved by the local building department's experts, who may propose changes that will need to re-run the gauntlet of experts. Not only is this process expensive, it can be very time-consuming.
Changes in land use regulations or building codes can also impose re-design requirements which create the opportunity for discussion, debate and disagreement among the experts retained by the owner, the lender, tenants, insurers and local governmental officials.
Typically, this proliferation of parties persists even further. If the loan is a securitized loan, once the special servicer figures out what it is willing to approve, it may require input or consent from the holder of the most junior tranche of securities and the rating agencies before it can agree to a restoration proposal. Similarly, for large projects insurance coverage normally involves layers of insurance provided by multiple different insurers, and the first-exposed insurer may be compelled to obtain input and assent from later-exposed layers before agreeing to a restoration plan that will require participation by those other insurers.
When all of the foregoing eventually results in agreement in principle on what is to be done, the same parties then need to negotiate and agree on a set of specific proceeds disbursement procedures to protect their various competing interests.
So, next time you confront one of those dry insurance provisions, give some thought as to what would really happen if the unthinkable occurred—and get a lot of business interruption insurance.
Tom Muller is co-chair of the land use and real estate practice at Manatt, Phelps & Phillips LLP. The views expressed in this column are the author's own.
Want to continue reading?
Become a Free ALM Digital Reader.
Once you are an ALM Digital Member, you’ll receive:
- Breaking commercial real estate news and analysis, on-site and via our newsletters and custom alerts
- Educational webcasts, white papers, and ebooks from industry thought leaders
- Critical coverage of the property casualty insurance and financial advisory markets on our other ALM sites, PropertyCasualty360 and ThinkAdvisor
Already have an account? Sign In Now
*May exclude premium content© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.