Commercial Real Estate — Attorney and Broker Representation

Jimmy Nguyen brings a dual perspective to commercial real estate in San Jose and Santa Clara County: he is both a licensed California real estate broker and a real estate attorney. That means he can represent you in the transaction itself, or in court if the deal turns into a dispute.

Buying or Leasing Commercial Property? Jimmy Represents You as Your Broker

As a broker, Jimmy represents buyers purchasing commercial property and tenants negotiating a lease for office, retail, industrial, or mixed-use space in San Jose and across Santa Clara County. He negotiates price and terms on your behalf, coordinates due diligence, and works to protect your interests from the letter of intent through closing or lease signing. For a commercial buyer or tenant that is the bonus of hiring Jimmy: two professionals in one. The broker negotiating your deal is the same attorney who reads the lease and litigates it if the other side does not perform. (He represents home buyers as their broker on the same basis.) Brokerage services are not legal services. Any legal services needed in connection with or related to a brokerage engagement require a separate written agreement for legal services, including the compensation for those services.

Commercial Lease Review, Negotiation and Renewals

Most people who call about a commercial lease are not in a dispute yet. They have a renewal on the table, or a landlord’s standard form in front of them, and a sense that they should not simply sign it. A commercial lease is not a regulated consumer contract the way a residential lease is — the law assumes both sides are businesses, so most of what protects you is what you negotiated. Jimmy reviews and negotiates commercial leases for tenants — a first lease, a renewal, or an option being exercised. Some clients want a review and a plain-English read on what they are signing; others want him at the table on the terms themselves. (For a tenant’s walkthrough of a renewal, read Before You Sign a Commercial Lease Renewal in California.) A handful of provisions decide most of the argument later:

• The renewal option and its notice window. Options to extend usually require written notice inside a defined window — often something like nine to twelve months before expiration. Miss it and the option can lapse, which turns a right you already paid for into a negotiation you no longer control. This is the single most common avoidable problem in a lease renewal.
• What “NNN” actually includes. Triple-net and CAM provisions vary widely in what the landlord may pass through, whether administrative fees stack on top, whether there is a cap on year-over-year increases, and whether you have any right to audit the reconciliation. The base rent is rarely where the money is.
• Personal guaranties. If you signed one, the liability protection of your LLC or corporation may not survive a default. Guaranties can sometimes be limited in time or amount, or burned off against a payment history — but only if that is negotiated in.
• Assignment and subletting. This clause decides whether you can ever sell your business. A landlord’s consent right that is not qualified by a reasonableness standard can hand them a veto over your exit, or leverage to recapture the space.
• Use, exclusivity and continuous operation. A narrow use clause limits what you can pivot to; an exclusivity clause protects you from a direct competitor arriving in the same center; a continuous-operation covenant can make simply closing a breach.
• Holdover. Holdover rent at 150–200% of the last month’s rate is common, and it can compound quickly if a renewal negotiation runs past expiration.

The accessibility disclosure most tenants skip

Under Civil Code section 1938, a commercial landlord must state in every lease executed on or after January 1, 2017 whether the premises have been inspected by a Certified Access Specialist (CASp). If an inspection was done, the landlord must give you the report before you sign. If the report is not provided at least 48 hours before execution, the statute gives the tenant a right to rescind the lease for 72 hours after signing, based on what the report says.

The default allocation matters just as much: under the same section, correcting accessibility violations noted in a CASp report is presumed to be the landlord’s responsibility unless the parties agree otherwise. Many landlord forms quietly agree otherwise. Because ADA and Unruh Act exposure for a non-compliant entrance, restroom or parking stall generally lands on the business operating the premises, this is a clause worth reading closely before it becomes a demand letter.

Security deposits are not governed by the residential rules

Commercial deposits fall under Civil Code section 1950.7, not the residential rules in section 1950.5. The landlord may claim only what is reasonably necessary to cover unpaid rent, repair tenant-caused damage, or clean the premises — and only where the deposit was made for those purposes. Where the deposit is no more than one month’s rent plus a sum clearly identified as last month’s rent, and the landlord’s claim is for unpaid rent only, the remainder is generally due back within 30 days of the landlord regaining possession.

Buying a Business

Many commercial matters are really a business purchase with a lease attached — a restaurant, a salon, a dental practice, a shop with goodwill and equipment and a location it cannot easily leave. Jimmy represents the buyer in these deals. A few structural questions drive most of a buyer’s risk:

• Asset sale or entity sale. Buying the assets generally lets a buyer leave known and unknown liabilities behind; buying the entity takes the company as it stands, along with its history. The choice drives tax treatment, which contracts have to be assigned, and what the buyer inherits.
• Whether bulk sale notice is required. Under Commercial Code section 6103, California’s bulk sales rules apply where the seller’s principal business is selling inventory from stock — including manufacturers — or the seller is a restaurant owner, and the seller is located in California. Where the division applies, a buyer who skips the required notice can face claims from the seller’s creditors. For retail and restaurant deals in Santa Clara County this is a routine question, not an exotic one.
• Landlord consent to assign the lease. This is the most common reason a signed business-sale deal does not close. If the lease requires consent and the landlord is slow, unwilling, or wants to renegotiate terms as the price of consenting, the deal stalls regardless of what the buyer and seller agreed. It should be diligenced first, not last.
• Non-competes — the one place California allows them. California voids most employee non-competes, but Business and Professions Code section 16601 is a genuine exception: someone selling the goodwill of a business, or all of their ownership interest, may agree not to carry on a similar business within a specified geographic area, so long as the buyer continues to operate there. If you are paying for goodwill, this is usually the clause that protects what you paid for — and it has to be drafted inside those statutory limits to hold up.
• Allocation of the purchase price across equipment, inventory, goodwill and any covenant not to compete. The split carries real tax consequences for a buyer, and it is negotiated, not automatic.
• Licenses and permits that do not travel automatically — an ABC liquor license transfer, health permits, or a conditional use permit tied to the prior operator can each control the timeline.

How Commercial Differs From Residential

People who have bought a house before are often surprised by how much less scaffolding there is around a commercial deal:

• No Transfer Disclosure Statement. The TDS and Seller Property Questionnaire regime does not apply, so there is no standard form compelling a seller to itemize what they know.
• No section 2079 agent inspection duty. The statutory duty on an agent to conduct a reasonably competent visual inspection is limited to residential property of one to four units. On a commercial deal, that duty — and the two-year cap in section 2079.4 that comes with it — is simply not in play.
• “As-is” carries more weight between sophisticated parties, which puts correspondingly more weight on your own due diligence and on what representations you negotiated into the contract. It does not license affirmative concealment: the fraud and deceit provisions below still apply.
• A change in ownership can trigger reassessment under Proposition 13, which can move the property tax line materially. Worth modeling before closing rather than discovering on the next bill.

The practical consequence is that in commercial deals, what you can prove later depends heavily on what you asked for in writing before closing — estoppel certificates from existing tenants, a verified rent roll, service contracts, environmental and zoning review, and specific representations rather than general assurances. Jimmy’s article on commercial due diligence walks through the full checklist and the contingency clock.

When the Deal Goes Wrong: Commercial Real Estate Litigation

Not every commercial transaction closes cleanly. If a seller breached the purchase agreement, failed to disclose a known defect, misrepresented the condition or income of the property, or engaged in constructive fraud, Jimmy represents buyers seeking to recover damages, rescind the deal, or force specific performance. Common claims include:

• Breach of contract
• Failure to disclose a known defect
• Negligent or intentional misrepresentation
• Constructive fraud

Legal Basis

Commercial transactions are not covered by the residential Transfer Disclosure Statement requirement, so these claims typically rely on contract terms and common-law fraud doctrines, including:

• Civil Code § 1572 — defines actual fraud, including suggesting a fact known to be false or suppressing a fact one is bound to disclose.
• Civil Code § 1573 — defines constructive fraud, covering breaches of duty that mislead another to their prejudice even without dishonest intent.
• Civil Code §§ 1709-1710 — establish liability for deceit, including negligent misrepresentation of a material fact.
• Code of Civil Procedure § 337 — generally allows four years to sue for breach of a written commercial purchase or lease agreement.
• Civil Code § 1938 — requires a commercial landlord to state whether the premises have had a CASp accessibility inspection, and sets the tenant’s limited right to rescind where the report is delivered late.
• Civil Code § 1950.7 — governs commercial security deposits, separately from the residential rules in section 1950.5.
• Business and Professions Code § 16601 — permits a non-compete given in connection with the sale of a business’s goodwill or ownership interest, as an exception to section 16600.
• Commercial Code § 6103 — sets when California’s bulk sales notice requirements apply to a sale of business assets.

Commercial Real Estate Questions

Do I need a lawyer to review a commercial lease renewal?

Not always, but a renewal is usually the last moment you have real leverage. The terms worth checking are the notice window on the option to extend, what the landlord may pass through as CAM or triple-net charges, whether a personal guaranty survives, and whether you can assign the lease if you ever sell the business. Jimmy reviews the lease and tells you which points are worth negotiating and which are market-standard, and can negotiate those terms with the landlord for you — before you are committed.

What is a CASp inspection, and why does it appear in my lease?

Civil Code section 1938 requires a commercial landlord to state in every lease executed on or after January 1, 2017 whether the property has been inspected by a Certified Access Specialist. If an inspection was done, you are entitled to the report before signing. If it arrives less than 48 hours before execution, you generally have 72 hours after signing to rescind based on what it says. It matters because accessibility claims usually land on the business operating the premises.

Who pays to fix accessibility problems, the landlord or the tenant?

Under Civil Code section 1938, correcting violations noted in a CASp report is presumed to be the landlord's responsibility unless the parties agree otherwise in the lease. Many landlord forms do agree otherwise. Which way your lease allocates that cost is worth knowing before a demand letter arrives, not after.

I am buying a restaurant. Is there anything specific I need to do?

Several things, and one of them is statutory. Under Commercial Code section 6103, California's bulk sales rules apply where the seller is a restaurant owner or the seller's principal business is selling inventory from stock. If the division applies and the required notice is not given, a buyer can face claims from the seller's creditors. Alongside that, the lease assignment and any ABC license transfer usually control the closing timeline.

Can the seller of a business agree not to compete with me in California?

Yes, in this narrow situation. California voids most non-competes, but Business and Professions Code section 16601 permits one given by a person selling the goodwill of a business or all of their ownership interest, limited to a specified geographic area where the business operated, and only while the buyer continues to carry on a like business there. The scope has to be drafted within those limits.

The seller misrepresented the building's condition or income. Do I have a claim?

Possibly. Commercial deals have no Transfer Disclosure Statement and no section 2079 agent inspection duty, so claims generally rest on the contract you negotiated and on California's fraud and deceit provisions, including Civil Code sections 1572, 1573 and 1709 to 1710. Breach of a written agreement generally carries a four-year limitations period under Code of Civil Procedure section 337. What you can prove usually turns on the representations you put in writing before closing.

Does the property have to be in San Jose?

No. Jimmy is based in San Jose and works throughout Santa Clara County, and takes commercial matters elsewhere in California where the facts warrant it. What matters is the nature of the deal or the dispute, not the distance.

For residential transactions, deposit disputes, or common questions, see our Real Estate Law, Earnest Money Disputes, and Real Estate Law FAQ pages, or read Can You Sue Your Real Estate Agent in California? on our blog.

Jimmy has represented business owners buying their first commercial building, and has negotiated business lease agreements on behalf of tenants.

Is a commercial deal going south, or do you need representation buying or leasing your next property? Email jimmy@lawjn.com with a short description of the deal, and Jimmy will follow up to set a complimentary phone consultation.

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