Commercial real estate deals rarely collapse because one impossible problem suddenly appears at closing. More often, a manageable issue, whether an old lien, a mineral rights reservation, an unverified entitlement assumption, or a lender condition, is discovered after the parties have already spent money and lost valuable time.

That timing changes everything. A problem found during the first week of due diligence may be investigated, priced, insured over, cured, or allocated by agreement. The same problem discovered one day before the end of the due diligence period, or at closing, can become a crisis. Deposits may be at risk, financing may be expiring, tenants or forward sale buyers of certain components of the deal may be waiting, and neither side wants to start over.

The goal is not to expect a flawless property or a frictionless transaction. The goal is to identify the problems that matter while the contract still gives the parties meaningful choices. The following five issues appear repeatedly in commercial real estate transactions, and each becomes easier to manage when addressed early and deliberately.

1. Title Issues That Outlive the Seller’s Memory

A seller may have owned and operated a property for years without encountering a title dispute. That does not mean the title is clean. Unreleased liens, judgments, tax matters, easements, use restrictions, rights of first refusal, incorrect ownership records, mineral rights reservations, and defects in the legal description can remain dormant until a title search brings them back into view.

The practical problem is not simply that an exception appears on a title commitment. The real question is what that exception does to the deal. An easement may cross the proposed building pad. A restriction may prohibit the buyer’s intended business. A lien may require a payoff that the seller disputes. A legal description may not match the parcel shown on the survey.

Address title early by ordering the commitment as soon as possible, conducting a high-level review promptly upon receipt, flagging material documents for further analysis, and comparing the title documents with the survey and the buyer’s proposed use.

Sellers should consider ordering a title commitment and beginning the process of cleaning up title before a letter of intent is even signed. This may include terminating recorded notices of commencement for completed work, resolving minor code violations, and addressing other routine exceptions. The process generally runs more smoothly when a seller presents the buyer with a pre-vetted title commitment in which cleanup items have either been resolved or have a clear path toward resolution.

Create a written curative list identifying who is responsible for each item, what document or action is required, and when the matter must be resolved. A vague promise that title will be “handled before closing” is not a cure plan.

The following is a brief guide to addressing several routine Florida title issues, although there is never a one-size-fits-all approach:

• Covenant recorded more than 30 years ago: Analyze whether the Marketable Record Title Act may extinguish it
• Surveyed legal description differs from the record description: Possible solutions may include a quitclaim deed, surveyor’s affidavit, and appropriate title endorsement
• Ongoing construction or mechanics’ lien exposure: Terminate recorded notices of commencement and obtain appropriate lien waivers, contractor affidavits, and subcontractor documentation, in coordination with title company

2. Zoning and Development Assumptions That Were Never Verified

A zoning designation is a starting point, not a final conclusion. For development transactions, local land use counsel should be engaged in the jurisdiction where the property is located. Counsel may provide a formal land use opinion or, more commonly, help the buyer understand and underwrite the entire approvals path required to put a shovel in the ground.

The review should focus particularly on discretionary approvals, public hearings, open-ended concurrency requirements, impact fees, utility capacity allocations, and other requirements that are not purely administrative or “check-the-box” matters.

Existing operations also deserve careful review. A use may be legally nonconforming, or “grandfathered,” but if all or a specified percentage of the building is destroyed by casualty, it is important to understand the owner’s right to rebuild at the existing density or intensity.

Similarly, a buyer planning to expand, redevelop, add signage, change tenants, or increase density should confirm that the future plan, and not merely the current use, complies with applicable local requirements.

3. Environmental Issues Hidden in the Property’s History

Commercial property carries history. A clean-looking site may once have housed a dry cleaner, fuel station, repair shop, manufacturing operation, agricultural use, or underground storage tank. Contamination may also migrate from a neighboring property. The current owner’s lack of knowledge does not make the risk disappear.

A Phase I Environmental Site Assessment is commonly used to investigate historical uses and identify recognized environmental conditions. Federal “all appropriate inquiries” standards are designed to evaluate a property’s environmental conditions and potential contamination liability. If the Phase I identifies a concern, additional investigation, often called a Phase II, may be necessary before the parties can evaluate the potential cost, timing, and legal consequences.

Order environmental work early enough to permit follow-up testing. Make sure the contract provides access for consultants and addresses restoration of the property after testing. If contamination is identified, the parties may consider remediation, a price adjustment, an escrow, an indemnity, or termination.

An older report prepared for another party may provide useful background, but it should not automatically be treated as a substitute for current, transaction-specific diligence. It also generally cannot be relied upon without an appropriate reliance letter and any necessary update reflecting the property’s current condition.

4. Access, Parking, and Easements That Work Only by Habit

A property can function smoothly for years based on informal arrangements that no one has examined closely. Customers may use a driveway that crosses neighboring land. Tenants may park on an adjacent parcel. Utilities may run through an area without a clearly documented easement. A shared access road may exist without a workable maintenance agreement.

Practical use is not always the same as legally protected use. In Florida, access rights can arise in different ways, including recorded easements and, in limited circumstances, ways of necessity. A transaction should not assume, however, that litigation or an implied right will solve an access problem after closing. Lenders, title insurers, and future buyers generally want those rights to be documented and insurable.

Review the survey, title documents, curb cuts, parking layout, utility locations, and recorded easements together. Confirm that each easement benefits the correct parcel, permits the intended type and volume of use, survives a transfer, and appropriately allocates maintenance obligations and costs.

5. Closing Problems Created by Poor Coordination

Closing problems are often not legal mysteries. They are coordination failures. A deed is signed in the wrong capacity. A lender requires an original document that no one ordered. A tenant estoppel arrives with unexpected information. A certificate has expired. Funds are sent late. Wire instructions are changed without proper verification. The closing statement does not reflect the negotiated credits. Post-closing filings and notices are left without a responsible party.

Florida closings may also involve documentary stamp taxes on deeds, notes, and recorded mortgages, along with recording charges, prorations, lender fees, escrow items, and other transaction costs. These items should be identified and allocated before the closing statement becomes an emergency.

Depending on the parties and the transaction, federal tax withholding, entity documents, affidavits, releases, estoppels, assignment documents, and lender conditions may also require advance attention.

Use a written closing checklist identifying each document, responsible party, signatory, delivery method, deadline, and closing condition. Circulate drafts early. Confirm entity names, authority, and signature blocks. Verify wire instructions through a trusted, independent method. Conduct a pre-closing call several business days before funding, not merely the afternoon before.

A closing should be the execution of completed work, not the moment when everyone discovers what remains unfinished.

Build an Early Warning System for the Transaction

The strongest transaction teams do not simply maintain a list of documents. They communicate regularly and identify the threshold issues that must be solved for the deal to proceed.

The earlier a serious issue is identified, the more remedies remain available. Time can be used to obtain a release, negotiate an easement, complete environmental testing, locate replacement financing, or amend the contract. Delay turns choices into deadlines, and deadlines into leverage for someone else.

Find the Problem While You Still Have Options

Commercial real estate risk cannot be eliminated, but it can be investigated, priced, allocated, insured, cured, and documented. The parties who manage transactions well are not those who never encounter problems. They are those who identify the right problems early and respond before those problems control the deal.

If you are buying, selling, financing, or developing commercial property in Florida, Maher Law can help review the purchase agreement, coordinate due diligence, evaluate title and survey matters, address development concerns, and prepare the transaction for an organized closing.

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