Inside the Room: How Handing Back the Keys On Commercial Real Estate Works
Amid generational office distress, Commercial Observer breaks down what happens when borrowers hand back the keys
“There’s a high level of tribalism,” said Shlomo Chopp, managing partner at Terra Strategies, a real estate advisory firm that specializes in distress. “Usually when a borrower gets involved, it gets contentious.”
“You can’t not operate the property, or you’d violate some recourse carve-out triggers … then tenants put you in default and the lender doesn’t have cash flow,” explained Chopp. “Borrowers think they can do that, but you can’t tell a lender, ‘I’m leaving.’ You can’t just send back the keys and say, ‘Take it,’ because there’s no clause for that in loan documents.”
While every nonrecourse loan document carries language specifying that the lender won’t pursue money judgments against the borrower, but rather only a judgment to foreclose on the property, there are two exceptions: above-the-line recourse items and below-the-line recourse items, both of which allow the lender to go after the borrower personally, according to Chopp.
Above-the-line items include allegations that the borrower committed fraud, failed to cover insurance payments, or committed waste or damage to the building, and the lender needs to prove this before submitting a money judgment for the damages. Below-the-line judgments occur mainly when the borrower declares bankruptcy, which triggers full recourse against the borrower, even beyond the damages.
Between January and March 2023, there have been roughly $3.7 billion in new maturity defaults with CMBS unable to be paid off on time, while the aggregate amount of CMBS debt in maturity default has increased 28 percent over the past 12 months, according to CRED iQ, a national data analytics firm.
“Oh, my gosh, there’s a problem here,” said Chopp. “I would liken what’s happening now to if we had a downturn just as Henry Ford came out with the car and we had a lot of horse and buggy loans due.
“It’s not what it used to be. A lot of office just isn’t viable in its current form.”