Non-Recourse Commercial Loans And Standard Carve Outs

[Winston Rowe]

The common understanding of a non-recourse commercial real estate loan is that an individual has little to no personal liability should a default occur. However, this isn’t always the case. An individual signing on behalf of the borrowing entity, Sponsor, isn’t always immune from personal liability.

Non-recourse loans have exceptions within the loan documents that essentially transfer personal liability to the Sponsor for certain “bad boy” behaviors. Or more specifically, there are personal guarantees required with non-recourse loans.

Not only is the Sponsor personally liable for bad boy behaviors, individuals or entities providing limited guaranties or indemnification can still be liable.

Typical exceptions include:

Losses for fraud or intentional misrepresentation

Losses for waste

Losses for misappropriation of tenant security deposits or rents

Specific performance of the loan documents

To foreclose and obtain title to the collateral

To enforce any guaranty

To enforce any indemnity

To enforce any environmental indemnity

To enforce any release of liability

To obtain a receiver

To enforce the assignment of leases and rents

Losses regarding required insurance of the collateral

Losses from the failure to pay over insurance proceeds

Losses from the failure to pay over condemnation awards

Voluntary bankruptcy or insolvency

Involuntary bankruptcy or insolvency

While these are typical carve outs, each lender’s loan documents will differ and each state will have their own “legal” interpretation of these carve outs.

Examples where carve outs can affect Sponsor liabilities include:

The lender may be able to sue the Sponsor if fraud or material misrepresentation affects the selling price of an asset creating a deficiency of proceeds to cover the loan.

Losses for misappropriation of tenant security deposits or rents: The lender can pursue its rights to the security deposits or rents as additional security under the loan documents. If the security deposits or rents are unavailable, then the lender is left with seeking a personal judgment against the borrower for the missing security, and the lender could pursue tort claims such as for conversion.

Additionally, rent skimming is using revenue from the rental of residential real property at any time during the first year after acquiring the property without first applying the rent (or an equivalent amount) to the mortgage payments.

To enforce an environmental guaranty: An environmental indemnity will survive a non-judicial foreclosure sale. A lender may sue for money or to enforce an “environmental provision” (a representation or covenant concerning hazardous substances) without violating a state’s anti-deficiency laws.

To enforce any release of liability: A release of liability should survive a non-judicial foreclosure sale because a release has nothing to do with obtaining a deficiency, or otherwise trying to enforce a monetary obligation of the Sponsor.

To enforce the assignment of leases and rents: In the event of a non-judicial foreclosure, the lender can still obtain pre-sale rents held by a receiver under an assignment of rents clause, up to the amount of the deficiency, since the assignment of rents is treated as additional security. (Simply suing the Sponsor prior to the non-judicial foreclosure sale for enforcement of the assignment of rents and lease provisions of a deed of trust is also allowable).

Losses regarding required insurance of the collateral: Insurance proceeds are treated as additional security that is available to the lender. The lender can seek a personal money judgment against the Sponsor for its breach of the loan documents.

Losses from the failure to pay over insurance proceeds: After a non-judicial foreclosure leaving a deficiency the lender can seek to recover insurance proceeds to which it is entitled under the loan documents. If recovering the proceeds from the Sponsor proved impossible, then the lender is left with seeking a personal judgment against the Sponsor for the missing proceeds. The lender could sue in tort for conversion.

While it seems non-recourse commercial loans have “teeth” when it comes to personally liability, it may not always be the case. In the event of a non-judicial foreclosure, if the lender bids at the sale and obtains the property, or if someone else purchases the property, the amount of bid must be deducted from the amount owing. If there is no deficiency, the lender has little recourse attempting to enforce any of the bad boy carve outs. Additionally, the lender will always need to prove its actual losses directly caused by breach of any bad boy provision.