Will Downs With Downs Law

Intro: [00:00:04] Broadcasting live from the Business RadioX Studios in Atlanta, Georgia. It’s time for Atlanta Business Radio brought to you by onpay Atlanta’s new standard in payroll. Now here’s your host.

Lee Kantor: [00:00:24] Lee Kantor here, another episode of Atlanta Business Radio, and this is going to be a good one, but before we get started, it’s important to recognize our sponsor on pay. Without them, we couldn’t be sharing these important stories today on Atlanta Business Radio. We have Will downs with Downs Law. Welcome, Will.

Will Downs: [00:00:41] Hey, Lee, how are you doing?

Lee Kantor: [00:00:42] I am doing well, I’m excited to learn what you’re up to. Tell us a little bit about dance law. How are you serving, folks?

Will Downs: [00:00:48] Sure thing. Well, we have a law firm that focuses on commercial real estate and litigation and and really kind of what that boils down to is we negotiate and fight over a property and money. So so that’s kind of what we do and the way we do it is we just try to to do so in a clear communicable way that kind of articulates the mission, our purpose, our scope of work, and we try to be transparent about the legal process to guide clients throughout.

Lee Kantor: [00:01:17] So now what’s your back story? Did you always want to be a lawyer and specifically, do you always want to get involved in this side of the law?

Will Downs: [00:01:26] I did not always want to be a lawyer, Lee. I have a journalism background, so I was always interested in stories and telling stories and people. So it is kind of a good Segway to the law. So it’s a practice in journalism for a couple of years and then made the transition to law. So. So now I get to, you know, when I’m in court, I get to to craft the story. I want to tell that that is designed to persuade the judge or the jurors.

Lee Kantor: [00:02:00] So you get to use that storytelling still comes into play, it’s just you’re kind of using it a little differently than maybe you envisioned when you were younger.

Will Downs: [00:02:08] Yeah, it’s you know, it’s it’s interesting because, you know, in journalism, you can often take a quite complex piece and you kind of have to distill it into that, you know, however many words you’re given or how many minutes you’re given and the laws the same way. I mean, you know, in court, at least you don’t have a long time to to impress people and you kind of get to the point and you get to choose what’s relevant and what’s not and what you think is going to persuade and kind of leave the the kind of ancillary details that you may think are interesting, but other people might not out so. So it’s it’s all about it’s all about a lot about crafting the story and you know, and also in a in a negotiation, not just in core, but say, you know, a lease negotiation, for instance, you know, that’s a 50. It can be a 50 page document. And you know, you can really get bogged down in a few of the details that you may have an issue with. But you know, kind of the the bigger picture is kind of, you know, is this a deal worth entering into or not? And so, you know, kind of looking at as a lawyer, I try to guide people in looking at the particular provisions that that really matter the most to Elise

Lee Kantor: [00:03:37] And even a negotiation of that kind. It’s not always kind of the facts of the matter, right? Like it’s the numbers or the numbers. And but the story is important as well because people buy things or they negotiate things, and the outcome might not be. Maybe they justify it with numbers, but sometimes the story kind of persuades them to make the deal or not.

Will Downs: [00:04:00] Yeah, yeah, that’s very much truly. And another thing is is often find in leases too, especially from the, you know, the tenants perspective, the prospective tenant, you know, they may get, you know, their story, they may get really attached to the particular space or the particular business idea. And they may have already kind of convinced themselves that this is what they want to do. And as a lawyer, I’m not ever trying to kill the deal if that’s something that that you want to do. But I I do want to, you know, make sure you’ve considered all the scenarios that may come into play and have done your due diligence to make sure you know this will be a story with a happy ending.

Lee Kantor: [00:04:51] Right. And they can make an informed decision. Not one. That’s an emotional decision, necessarily.

Will Downs: [00:04:56] That’s right.

Lee Kantor: [00:04:57] So now being that there are so many different types of lawyers in your case, you gravitated to this commercial side of the law. Can you talk to the folks out there that are deciding which lawyer I should choose in my situation? Is it something that I have to as a business person, I have to have, you know? Just a 20 different lawyers for every specific specialty or like. Or is it some general purpose lawyers can handle some of this stuff, like how do I know when it’s time to go for a specialist or a generalist?

Will Downs: [00:05:36] Well, that’s a that’s a really interesting question and one I’ve actually dealt with myself, you know, and I’ll start by saying this is that, you know, talking to lawyers can often be incredibly confusing. Know I am a lawyer and I find that often, you know, if I’m at, you know, gathering with another attorney, I haven’t met before and they’re trying to tell me what they do often can’t even quite make sense of what they’re telling me. They do so. So I certainly sympathize with, you know, the general public or even a business owner who you know, is looking to hire an attorney but but doesn’t quite know how to go about that or what they’re looking for. Yeah. So it can be incredibly difficult to find the right person. And even in my practice, you know, we often do work out of state. And so I need to associate an attorney in another jurisdiction. And it can be difficult unless I have, you know, have a colleague, you know, that I know they’ve worked with before. It can be difficult to find someone. So, you know, in hiring an attorney, you know, there’s a lot of factors to consider. And, you know, because it can be not only a life changing experience, but incredibly expensive and emotional decision as well. You know, so do doing due diligence is important. And as far as the types of law generals versus specialists, I don’t know that I quite see it that way. I mean, obviously, if if there are some certain, you know, specialty, I guess areas of law, let’s say like if you need a divorce, right? I mean, you know, a bankruptcy attorney isn’t going to necessarily be able to help you. So there are some certain specific categories of law that that a consumer or business owner may be looking for.

Will Downs: [00:07:41] But what I often find you know that that I get connected with with people and businesses is that it’s, you know, it’s I think of myself as like our firm, as a problem solver, right? So if you if you have a legal problem, you come to us and we can assess whether it’s something that kind of fits within our skill set that we can help with or if not, you can we can reach into our network of attorneys and find someone that they can help. But you know, some good resources to find attorneys are obviously, you know, people, other business owners that you trust. You know, those are always the best referrals. You know, they may not necessarily know exactly what type of attorney you’re looking for, but if they recommend it to an attorney they trust, you know, typically that trusted attorney, you know, will be able to point them in the right direction, even if it’s not a direct connection. That trust that attorney can then refer them to someone that they trust and help you get connected that way. You know, another really good thing to do. Like with any consumer product, is to try to find reviews. You know, a lot of there’s a lot of sites out there know Google. You know, there’s some other online sites where attorneys can get reviewed. And so when I’m looking to associate attorneys as well, I’m typically looking at, you know, or do they come highly recommended and what are the types of reviews? Is it? Or they reviews that you know they’ve solicited? Or do they seem like genuine client reviews? So those are some those are some considerations I would take in mind.

Lee Kantor: [00:09:28] So now in your working commercial real estate, obviously, since this is what you’re doing every day, you have a depth in that space that obviously other people wouldn’t have. Can you talk about in the commercial real estate world? What are some things maybe do’s and don’ts when it comes to a lease? If you’re obviously if you’re representing the landlord or the tenant, it would matter. But what if you could break down some do’s and don’ts in the lease? Can you can you share some of that thought leadership with us?

Will Downs: [00:10:03] Yeah, sure. You know. You know, absolutely, I mean, I think that there’s definitely. You know, I’ll start with the, you know, the tenant considerations, you know, just some things to keep in mind and things I’ve seen in my practice. I think one of the biggest things that that that comes up a lot is, you know, when do you start paying rent? So as is often the case. You’re not when you’re going into a new space, there’s some work that needs to be done to it. Often it’s not turnkey, you know, just come in and switch the utilities over. You may need to reconfigure the space, move some walls around, you know, depending on the size of the space, the project can be quite complex. So within that, you know, there are a lot of considerations as far as you know, timing of that and also the financing of it. And those are all interesting topics as well. But I think that the takeaway I always have is is regardless of how long or how much you’re spending. Um, you know that at some point, you know, you’re going to have to start paying rent and you really don’t want that to happen before you’re open for business. And so, you know, try to be realistic about the construction process and construction right now.

Will Downs: [00:11:35] You know, it’s fraught with issues, cost issues and delay issues. And so, you know, be realistic about how much time it will take if there’s things the landlord’s doing or we’re supposed to do in order to get you open for business. What are the potential repercussions if they don’t do those things on time? If there’s things that you need to do to get open for business, you know, make sure you have enough time to do all that stuff before before you have to start paying rent because, you know, it’s a really, really significant burden for you to start paying rent before you’re making money as a tenant. And it happens a lot more than you would think, just because I think people kind of underestimate how long it will actually take to do the things they need to do. So talk to, you know, talk to your lawyer or talk to other professionals about a realistic time frame and how you can craft, you know, language such that protect yourself in the event there are unforeseen delays. And I think on the landlord side. You know, a lot know landlords, I mean, this is obviously a very landlord friendly state in Georgia and most leases are very landlord friendly. So the things that you need to do as a landlord, you know, most often you know you’ve got a form, or at least that’s that you’ve thought about that are taking that to consideration.

Will Downs: [00:13:06] But I guess kind of one thing I will note on the landlords side that can come up a lot is and what a lot of landlords don’t think about is that, you know, you need to have adequate security from the tenant that you’re leasing to even if it’s a business with an established track record, you know, not not not not a new business, not a start up, a business with established track record. I mean, you know, businesses always or in flux, you know, there’s there’s ebbs and flows to it. So a landlord will often take a security deposit, but the amount of the deposit should be taken into consideration. You know, it’s not uncommon now to see a deposit, plus the last month’s rent on hand that gives you two months of security. Other forms of security can be personal guarantees, even if you have an established business, perhaps obtaining a personal guarantee from one of the owners or a parent company or another financially solvent company. Just to give you that added layer of protection in case things do go south with the lease.

Lee Kantor: [00:14:19] Now, do you work primarily with the landlord or the tenants?

Will Downs: [00:14:23] It’s just really a mixture, I mean, I don’t I’d say it’s probably 50 50 on each side of it, so I’m not an exclusively landlord, attorney or tenant attorney

Lee Kantor: [00:14:34] Now when but more things are negotiable than maybe the layperson realizes, right?

Will Downs: [00:14:43] Yeah, I mean, not only the layperson, but even sophisticated, you know, business people. Yeah, yeah. Most a lot of provisions are negotiable now. I mean, you know, when you’re negotiating against a large institutional landlord or tenant, you know, they typically have things that they’re not willing to negotiate on. But if you don’t ask, you’re obviously not going to get it. So, you know, the approach I take to negotiations, it isn’t. And you see, sometimes you get advice of, you know, always ask for everything and you know, then we’ll whittle it down. I mean, and while that’s true to some extent and you do start out with like a longer list of things. That you have concern about and isolating the one or two things that are most concern, always always try to be reasonable and not waste everyone’s time right. So if I know I’m dealing with, you know, a form lease that doesn’t have a lot of wiggle room, I mean, we’re not going to I’m not going to waste the client’s time or the other side’s time, you know, sending back a document that’s, you know, bleeding with red lines.

Lee Kantor: [00:15:55] Now, can you share a story? Don’t name any names, but an example of how working with your firm or a firm like your firm could actually save a lot of money or make a lot of money for the client.

Will Downs: [00:16:12] Yeah, and I mean, I will say. You know, I think just kind of goes back to on the on the leasing end of I’m thinking of at least it goes back to. You know, just that. You know, due diligence and how long it will actually take to, you know, to be open for business, right? I mean, you know, there’s there’s definitely been scenarios where we’ve. You know, counseled, you know, particularly tenants on how to protect themselves in the event this project runs long and pointed out that the way this lease is written, you’re, you know, you could potentially be on the hook for, you know, six months, rent or so before you’re open for business. And here are some things that you can do to protect against that. You know, I think that certainly saves clients money in the long run. If, if

Lee Kantor: [00:17:09] Right, like an example of that would be like, OK, I’m going to say my lease begins October 1st of this year, or I can say my lease begins when the build out is fully completed. And you know, right, like, you don’t have to have a hard date to start. You can you can negotiate a the date of moving rather than the date, a certain specific date and time.

Will Downs: [00:17:31] Yeah, you can. You can negotiate that stuff. I mean, so you know, while the landlord may want a date certain you can make it contingent on certain things happening, such as you being able to get a certificate of occupancy, which will allow you to do business in space, right?

Lee Kantor: [00:17:47] Because those things can be like if it’s if you’re waiting for a permit of some kind, it could be months and you’re just sitting there paying rent for months and not being open for business. But if you negotiate it properly, I mean, you could be saving them for six months worth of rent that they didn’t pay, whether or not McCain money.

Will Downs: [00:18:07] Yeah, that’s absolutely true, and especially it’s it really came into play with the, you know, with the pandemic, you know, shutting down a lot of governmental offices. You know, that’s certainly made permitting harder to obtain in. You know, there’s lease language you can put in there about those kind of unforeseen governmental delays, kind of extending the time period for you to do certain things.

Lee Kantor: [00:18:33] So now part of your job as you help your clients collect money that’s owed to them.

Will Downs: [00:18:40] That’s right, yeah, we do. Yeah. Like I said, we’re fighting over money, so we’re we’re trying to trying to get money to do to clients, whether it be under a lease agreement or a construction agreement or things of that nature.

Lee Kantor: [00:18:55] So can you talk about how that how do you know when it’s worth the effort to try and collect his or a dollar amount? Or is it how do you determine like, OK, let’s pursue this? Or look, I checked them out. You’re just trying to, you know? Get money from a black hole here, it’s not going to happen.

Will Downs: [00:19:16] Well, I kind of start. I mean, that’s a obviously a nuanced question, Leigh. And I think I think it’s a very important one, and I’ll start by saying this about collections at the end of day is always a business decision. Right for every business is going to be a different set of factors, but it certainly is the, you know, the cost and time and effort to collect the money versus the amount of money. And I’m not ever going to tell any business owner that the amount of money that they’re trying to get is too little, if that’s really important to them. All I can really advise them on is, you know what it would take for someone like me to help you get that money. And also, you know, potentially other ways to do it. And the other thing I’ll say about collections is this because I think there’s a lot of kind of it’s a hard kind of concept to grasp. But but the way I just kind of try to simplify it for people is one year or any business is when you’re looking to collect. There’s really, you know, there’s kind of the what I say, the easy way and the hard way, right? So that and what I mean by that is there’s either you do it outside of court or you do it through court. So right outside of court, you know, the easy way all you can really do in that kind of scenario is is just try to get them to the table, right? Try to get whoever is owing you money to come to the table.

Will Downs: [00:20:47] You can do that through calls, through letters. You know, by the time it gets to me or attorney like me, it’s typically, you know, business owner is exhausted, you know, all the efforts to try to get compliance with paying the debt. But if you’ve got someone that’s not wanting to pay you, you know your recourse is is kind of limited if they’re just ignoring you, if they’re taking the head in the sand approach. And, you know, if you hire a collection agency, you know, that’s really all they’re going to do to right. So the collection agents are not attorneys. They may work with attorneys, but you know, agencies then in and of itself is all they’re really going to do is just kind of send letters or make calls, try to coerce payment, try to, you know, settle for some amount, then what an attorney can assist with is, you know, the hard way right is collecting through the court process. And you know that anytime you’re weighing a decision whether to file suit against someone, it’s an important decision. It’s not something you should take lightly. And you know, there’s cost factors and not just cost factors, but there’s time.

Will Downs: [00:22:11] Factor as well, so you turn this over an attorney, but that’s it doesn’t mean you get to wash your hands of right, you still have to kind of be involved, you still have to provide answers, you know, documents, you may have to appear in court. So does that kind of time and expense of hiring an attorney? Another thing that kind of comes up with any sort of debt when you’re hiring an attorney is, OK, well, I’ve got to pay you to collect the debt. What about my legal fees? Can I get those? And that depends in in America, we kind of have this, you know, what’s called the American rule. That’s each side kind of pays their own legal fees. But as you know, in law, there’s always exceptions. So one exception is if you have a written contract that says the other side has to pay legal fees. If you win, then you can, you know, recover your legal fees as part of any sort of court award. A little bit outside of the the scope, but even kind of further nuances. Let’s say you go to court and you win and you get a judgment. How do you put that money in your pocket? And you know, that’s a that’s a whole separate set of questions that you know, we can get into if you want. But we can also save for another time.

Lee Kantor: [00:23:33] Right. But again, having a lawyer as part of your team going in, you can kind of set the stage for that at least proactively establish that as, OK, I’m going to be able to negotiate that back. If you had planned well at the beginning, right, you can put as part of your contract that the if you don’t pay, then you’re going to pay the legal fees.

Will Downs: [00:23:56] Yeah. And I mean, that’s, you know, any any business owner probably has a form contract they’re working with. And you know, if that if it doesn’t say anything about legal fees, then there’s the general rule is you’re you’re not certainly not guaranteed to get them. So that would be something to, you know, to consult with an attorney about to make sure your contract, you know, has the provisions it needs to have to make. Make sure if you do have to go to collections through an attorney to make sure you can maximize a recovery. Because I mean, you know, the the part that’s unfortunate is if you’ve got a debt in your contract doesn’t say anything about legal fees, then it gets expensive really quick and starts eating into, you know, the amount of, you know, recovery you stand to get right now.

Lee Kantor: [00:24:48] Obviously, in today’s climate, real estate is a very popular. A lot of people are seeing a lot of money being made and they’re trying to get into it that maybe they don’t know kind of some of the the potential risks or pitfalls that might happen. Can you share a little bit about some of these things that maybe some danger, that people maybe aren’t aware of that maybe they should take into consideration before they kind of dip their toe into the real estate world?

Will Downs: [00:25:19] Sure, sure. Let me kind of to to kind of quick things kind of come to mind to me, especially right now, is, you know, if if your project or the deal you’re looking at involves construction, you know, those costs are all over the place right now. You know, they change all the time. You know, there’s material shortages. So costs can vary widely, widely and timing is is always a problem in construction. But even more so now. So I would just say, you know, having a good understanding of the variables in play for that is certainly something to keep in mind. But then, you know, specifically kind of on the legal side, something that’s come up, you know, a fair amount, you know, not just now, but you know, historically too is, you know, what happens if someone kind of wants to back out of the contract, right? So you’ve got a real estate deal or real estate agreement that you put in place and you’re the buyer or the seller, there’s some money put down in one party just kind of backs out. You know, you see that a lot now, especially with real estate prices still being high. As you know, people flipping deals, you know, getting an offer or contract in place on something, but then still shopping it and then pulling that deal from you and going with another offer. So what what do you do in that situation? So, you know, as a buyer, if the seller is flipping the deal and just kind of breaches the contract, I mean, you know, you have to understand what your what your recourse is in that scenario, right? You’re now kind of in a scenario where kind of getting back to the collection thing, if you can’t just talk them into continuing on with your agreement, what do you do? Well, the only way to legally for someone to do something right is you have to get a court order.

Will Downs: [00:27:24] And so what that looks like from a buyer’s perspective is a court order for what’s called specific performance in order to force that seller to sell you the property for the price you agreed to. And while there is that remedy at law, right, and there’s plenty of case law to support that remedy, it again is not without its expense in time involved on enforcing that. And so, you know, I’ve certainly handled scenarios where, you know, we’ve we’ve pursued specific performance, but it’s it can be a complicated and time consuming process. So some people lose interest in pursuing that all the way on the sellers in, you know, if you’ve got a buyer who defaults for know reasons such as, you know, you know, not having enough money to proceed with the deal or the financing falls through, you know, typically your recourse under any sort of agreement is to keep that earnest money, keep the deposit money. So you know, you just need to understand, you know, if a buyer is trying to tie up. A deal for a significant period of time while they put together financing, you know, just making sure that the monies you’re getting is security for that or sufficient to cover you in the event that buyer defaults, realizing that you may lose out on being able to like market the space or we’re entered the agreement with other prospective buyers during that time period.

Lee Kantor: [00:29:10] Man, there’s just so much. And this is why it’s so important to have the right trusted adviser as part of the team because you need people watching your back. A lot of this stuff is not obvious. It’s a lot of this stuff is more complex than you would imagine. So having a trusted adviser is critical when you’re especially, you’re dealing with these kind of complex deals and complex interactions. Now will, if what can we do to help you, what do you need more of right now?

Will Downs: [00:29:41] Are like everybody. We need more time, right?

Lee Kantor: [00:29:44] More time now. So I’ll just I can whip up some more time for you. What can you create that day? Yes, we’ve been working.

Will Downs: [00:29:52] I’ll probably be a bad thing

Lee Kantor: [00:29:54] Because really, I don’t know if that would help. So what do you need more of? Are you looking for more clients right now or are you looking for more talent? What can we do to help?

Will Downs: [00:30:05] Well, we’re always they were always open to working with new clients. You know, we like building relationships, longstanding relationships with clients. So if you’re a business owner or property owner who’s looking, you has a legal need or look at develop a relationship with an attorney. We’d love to serve you. You know, we we try like I said, we try to be up front about about what we do, what we can handle and what we can offer. And we tried to really use technology to kind of streamline our processes so that we can, you know, we can’t service the volume of clients that we want to service and build those relationships that we really value. So, you know, when I started my firm, cash has been. About a year ago, one of the one of the great things about is I still have, you know, several of the clients that there wouldn’t be from the beginning or still with me. So it’s I like building relationships and working with the same people because, you know, we kind of learn a working, a working style together. And so that’s that’s always been one of the joys of mine is in one of the reasons I started my own firm is to be able to to take on more things and more different types of things. You know, that I could when I was working at a larger firm that had kind of more kind of parameters or kind of safeguards around, you know, just kind of being able to to take more stuff. So yeah, I’m always I’m always looking to build relationships, Lisa. If you’re your network, want to reach out, I’d love to talk with you.

Lee Kantor: [00:31:47] So if somebody wants to have a more substantive conversation with you or somebody on your team, what’s the website?

Will Downs: [00:31:54] So our website is Downs Law LLC, says Downs Dwayne’s Law LLC. You know, our phone number is four or four eight four to six thousand five hundred.

Lee Kantor: [00:32:08] Well, well, thank you so much for sharing your story today. You’re doing important work and we appreciate you.

Will Downs: [00:32:13] All right, thank you. Thank you for your work as well.

Lee Kantor: [00:32:16] All right, this is Lee Kantor. We’ll see you next time on Atlanta Business Radio.