Homebuilder & Residential Development

Land is the constraint. A pipeline is measured in lots under control and quarters of supply, and every land deal is finally an argument about who carries risk in the gap between contract and delivery — entitlement risk, infrastructure cost, capital cost, and the calendar.

We represent national and regional homebuilders, and the developers who sell finished lots to them, from site control through the last settlement.

We have worked the other side of the table

Six of our nine attorneys have worked in-house. That matters in practice for one reason: we have had to live with the documents afterward. We know which contract terms get quietly renegotiated at takedown, which entitlement conditions become somebody's cost problem two years later, and which provisions a land committee will actually approve.

Site control and contract

Letters of intent and term sheets
Option agreements, rolling options and staged purchase agreements
Feasibility and study periods, extension rights and deposit structures
Seller-performed development and finishing obligations
Right of first offer and right of first refusal arrangements
Assignment rights, including assignment to a land bank

Takedown structures

Phased and rolling takedown schedules, and minimum takedown obligations
Lot pricing, escalators and price adjustment mechanics
Delivery conditions and the definition of a finished lot
Remedies for late or non-conforming delivery
Force majeure, moratorium and allocation-failure provisions

Land banking

Option purchase agreements, development agreements and ancillary documents for institutional land-bank and lot-bank structures, for builders and for the capital on the other side. We have closed more than twenty of these transactions, covering more than 4,200 lots, homesites and residential units. We have closed land-bank transactions under five different institutional programs, each with its own document architecture. This is a substantial part of our practice and has its own page.

Entitlement risk

Approval contingencies and what counts as a satisfactory approval
Zoning due diligence and entitlement review before you are committed
Rezoning, site plan and subdivision conditions, and who bears their cost
Adequate public facilities and school capacity testing
Extension mechanics when an approval slips

Development and infrastructure

Development agreements and lot finishing specifications
Shared infrastructure, cost-sharing and reimbursement agreements
Offsite improvements and dedications
Bonds, letters of credit and public works agreements — including reduction and release
Stormwater, forest conservation and sewer allocation obligations as they land in the contract
Easements, encroachments, plat review and title clearance

Community documents

We act for the builder — as declarant of a new community, or as a participating builder in a community someone else controls. Where our client is the declarant we typically form the association and draft the governing documents it will live under, then carry the community through the declarant control period to turnover, and prepare the state disclosure and resale packages that open it for sale. We have done that work in more than 55 communities.

Declarations, public offering statements and registration
Condominium regimes, including land condominiums and townhouse condominiums
Homeowners association formation, phasing and annexation rights
Declarant control periods, budgets, reserves and turnover
Design guidelines and architectural review
Negotiating a land banker's consent and control rights out of the governing documents

Model homes, finance and disposition

Model home sale-leaseback and model home financing
Sales office and trailer leases
Acquisition and development loans, revolvers, guaranties and subordination
Bulk lot sales, outsale contracts and builder tie-in arrangements
Section 1031 exchange structuring on the sell side

Who we work with

National public homebuilders and regional private builders. Land developers who entitle and finish lots for sale to builders. Land bankers and the capital providers behind them. Lenders financing acquisition and development.

Where

Maryland — Anne Arundel, Baltimore, Harford, Howard, Prince George's, Frederick, Washington, Wicomico, Charles, Calvert and Queen Anne's counties, and the Cities of Annapolis and Salisbury. Virginia — Loudoun, Fauquier, Prince William, Frederick, Chesterfield, Henrico, Albemarle, Stafford and Prince George counties, and the Cities of Fredericksburg, Richmond and Hopewell. Delaware — Kent and Sussex counties. West Virginia, Pennsylvania and New Jersey. The District of Columbia.

Our attorneys are admitted in Maryland, Virginia and the District of Columbia, and in New York and New Jersey. Where a matter involves property in a state in which we are not admitted — including Delaware and West Virginia — we associate local counsel admitted in that state for the state-specific work, and continue to run the transaction.

To talk through a land deal, a takedown structure or an entitlement problem, contact Ryan C. Day, Anthony J. Clark or Douglas M. Irvin.

Representative Matters

Represented a national homebuilder in a three-stage acquisition exceeding $47.5 million for 310 residential units in Loudoun County, Virginia, combining a direct lot takedown with two successive institutional land-bank closings, the last conveying a 64-unit condominium parcel carrying 307,200 square feet of approved density, with a deferred payment secured by a letter of credit and a monetary proffer escrow holding partial releases for every unit.
Represented a national homebuilder in a phased institutional land-bank acquisition of 584 lots — 264 single-family detached, 97 villa and 223 townhome — in Sussex County, Delaware, under a lot finishing agreement exceeding $44 million, closing out environmental remediation with a recorded certificate of completion.
Represented a national homebuilder in the substitution of institutional land bankers on a 336-lot community in Sussex County, Delaware — terminating the original land banker's option of record, conveying to the incoming land banker and recording a replacement option, sequenced across four recording dates.
Represented a Maryland real estate partnership in the sale and finishing of 189 residential lots in Middle River, Maryland, for aggregate consideration exceeding $24 million, with a deferred installment secured by a letter of credit.