United States: A Purchaser's Guide For Preparing A Closing Checklist In A Skilled Nursing Home Property Acquisition

Below is a guide generally outlining the types of questions a purchaser should consider when planning to purchase, finance or develop a property on which a skilled nursing facility exists or will be built.

Prior to acquiring any real estate, which will be operated as a skilled nursing facility ("SNF"), a purchaser should perform a thorough due diligence investigation as to any material facts or issues relevant to the intended use of the property and any ancillary uses. Generally, a commercial real estate seller will negotiate to limit its liability as to the property conditions in the purchase and sale agreement (the "PSA"). Accordingly, it is the purchaser's obligation during the inspection period to conduct examinations and determine whether there are any problematic facts or issues relating to the acquisition. This article is intended to guide a purchaser in preparing a checklist that will assist in conducting a meaningful due diligence investigation for a property that is intended to be used as a SNF.1

I. Putting Together the Checklist

The first step is to create a closing checklist, which is a consolidated list of all the transaction documents. This includes the transfer, loan and title documents and delivery requirements necessary to close the deal. In drafting the initial checklist, the drafter should review (a) the PSA, which outlines the property conveyance terms and lists the documents and diligence items to be delivered by purchaser and seller and (b) the loan commitment or application, which identifies the documents and diligence items required by the lender (if any).

II. Acquisition and Property Diligence

In preparing the list of diligence/delivery requirements, the drafter should consider the following questions:

  1. What is the type of property (vacant land, improved land, etc.)? Is there an existing tenant/operator? Are there any other third parties with rights to the property? Is seller holding back any rights or restricting the transfer of the property? To answer these questions, a drafter should request items such as a certified rent roll, all leases, licenses or other occupancy agreements, any management agreement(s), the certificate of occupancy or other applicable building permits and property level financial statements, tax returns and bills.
  2. What is the planned use of the property? Is this a permitted use? This is a two-fold question in a SNF transaction.

    • As to the real estate: Is the property zoned for such use? What are the rules and restrictions? Is there appropriate street access, sufficient utilities, parking, etc.? To address these concerns a purchaser typically orders an appraisal, zoning report and engineering/architectural evaluations.
    • As to the operations: Is the property duly licensed or can it be duly licensed to operate as a SNF? If the existing operator will continue to operate the SNF, the operator should already be licensed and in good standing in the state in which it is located. If the operations are being transferred to a new operator, the new operator must take the appropriate steps to become duly licensed, and, as applicable, enrolled in Medicare and Medicaid through the Centers for Medicare and Medicaid (CMS). Please note that even if the operations are not being transferred, the local state licensing agency may require certain notifications or other related reports or disclosures with respect to the property transfer. In evaluating the operations, a purchaser should request items such as a standard form of residency agreement, copies of all existing state licenses, copies of all Certificates of Need (if applicable), CMS survey reports, material correspondence with government programs and/or payor intermediaries, Medicare and Medicaid Participation Letters and Provider Agreements, claims loss history, etc.
  3. If there are improvements, what physical condition are they in? Are they structurally sound? Typically, a purchaser will order a Property Condition Report (including code searches) and review copies of seller's O&M plans and insurance certificates.
  4. Is the property environmentally sound? Has there been any previous contamination either on the property or from neighboring properties? Are there underground storage tanks (UST's) or any recognized environmental conditions (REC's)? A purchaser will typically order a Phase I Environmental Assessment Report to address these concerns.
  5. Are there any encroachments onto the property, or from the property onto other lands? Any liens or encumbrances on the property that either need to be removed or taken subject to? The property section of the checklist will usually contain items such as a Title Commitment, copies of all recorded documents/exceptions, a Pro-Forma Title Policy with endorsements and a survey.
  6. Who are the parties to the PSA? If the parties are not individuals, what type of entity is involved, where was the entity formed, is it in good standing and does the individual executing documents have the necessary approvals and legal authority to enter into this transaction? These questions are answered by a review of the relevant organizational documents, including all entity formation and governing documents, resolutions authorizing the transaction, and good standing certificates.
  7. What documents are required to consummate the transfer of the property? Customary requirements are a deed of real property, bill of sale of personal property, assignment and assumption of contracts, FIRPTA and applicable lease documents (if necessary).

III. Financing Diligence

In the event the purchaser is obtaining acquisition financing, then the checklist drafter will need to include a list of lender requirements, which requires the consideration of the following questions:

  1. What are the loan terms between the purchaser, as borrower and its lender? What is the collateral and loan type? Typically, a lender will issue a term sheet that sets forth the basic requirements of the loan, including customary fees to be paid and the required documents to evidence and secure its liens.
  2. What other types of financing arrangements are the purchaser, the purchaser's tenant/operator or the property currently subject to? The purchaser's mortgage lender will typically require copies of loan documents for any accounts receivable financing/credit facility (a SNF operator will almost always have a credit facility in place), affiliated financing or mezzanine financing. In addition, the purchaser's mortgage lender may also require that an Intercreditor Agreement be entered into between the mortgage lender and any other secured party/financing source of purchaser or purchaser's tenant.

IV. Conclusion

Conducting a thorough due diligence investigation can be a critical component of a real estate transaction, or the termination thereof. The contractual "due diligence period" typically provides an opportunity for the purchaser to walk away from the deal (and possibly even receive a repayment of some or all of its deposit), if a purchaser determines its intended use for the property is not possible or feasible. The above guide should provide the purchaser of a proposed SNF property with a meaningful place to start its investigation; however, every transaction is different and it is important that a purchaser tailor its due diligence review to the facts and circumstances surrounding the specific property and business that will be purchased.

Footnotes

1 Please note that the scope and focus of any due diligence investigation depends upon the party for whom the investigation is being conducted, as it will vary according to the party's role in the transaction. Also, factors such as where the particular property is located, the intended use of the property, whether that use is for-profit or not-for-profit, as well as other deal specific factors, will dictate what additional due diligence should be conducted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.