Services & Industries
J.D., with honors, University of Texas at Austin School of Law, 1989
B.A., cum laude, Washington State University, 1984
Bar & Court Admissions
Oregon State Bar, Real Estate and Land Use and Business Sections
Washington State Bar Association
Idaho State Bar
Ted is a member of Tonkon Torp’s Real Estate & Land Use Practice Group. His practice focuses on real estate acquisitions, sales, leasing, financing, and development, particularly in the seniors housing market. Additionally, he counsels on general business matters and negotiates and drafts a wide variety of business contracts. He has been recognized by Best Lawyers in America for his real estate law expertise. Ted takes a practical, efficient approach to addressing his clients’ legal needs. He stresses good communication and results.
In re Stayton SW Assisted Living, L.L.C. (the Consolidated Sunwest Related Entities)
(Bankr. D. Or.) – Tonkon represented debtor, Stayton SW Assisted Living, L.L.C., and over 700 substantially consolidated affiliates, in a Chapter 11 proceeding that resulted in a confirmed Plan of Reorganization. The biggest and most complex bankruptcy case ever filed in Oregon, the consolidation, restructuring and $1.2 billion sale involving over 700 of Sunwest entities demanded legal expertise in bankruptcy, securities, tax, real estate, corporate governance, litigation, mergers and acquisitions, regulated industries and commercial transactions. Al Kennedy and Tim Conway worked with a team of Tonkon lawyers and paralegals who developed and executed a complex resolution that restructured obligations owing to over 90 secured lenders, sold 146 senior living facilities (including approximately 1,200 tenant-in-common interests held by investors), and resulted in distributions to creditors and investors exceeding 100% of their claims.
Complex Senior Housing Construction Loan Facilitation
Represented client borrower in the negotiation and closing of a construction loan for a retirement residence in Washington state. Our work included a loan agreement, related security documents, and the negotiation of ancillary development agreements among the borrower and its development and architectural contractors. On the intended day of closing, it was discovered that a subcontractor had prematurely commenced site work, jeopardizing the bank’s priority. We were able to work with the client, title, and bank to negotiate subordination agreements for the subcontractor and general contractor, and closing proceeded only one day later than planned.
Represented client in the purchase of a 33% membership interest in an LLC that owns a low-income multifamily housing development. This transaction was particularly complicated given the regulatory approvals required from both the State of Oregon (in connection with the low-income housing status) and the U.S. Department of Housing and Urban Development (as the entity had a loan from HUD). This process of seeking approvals, coordinating updated applications, regulatory documents, and loan documents – involving repeated back and forth with the applicable governmental authorities – took over six months.
1031 Exchange For Estate of Deceased Out-of-State Taxpayer
Represented client and his estate in the sale of investment property and the purchase of new investment property in a 1031 tax deferred exchange. The transaction presented unique tax and real estate issues due to the death of the client during the 1031 exchange period. Also, the new property required evaluation of environmental issues due to its former use as a gas station.
New Corporate Headquarters Campus
Represented Yakima Products, Inc. on all aspects of its purchase of an 89,000 square foot office building and 13-acre campus in Lake Oswego, Oregon for its new corporate headquarters. Advised client regarding potential land use and redevelopment issues. Also negotiated a lease termination agreement with Yakima's prior landlord.
Development of Massachusetts Senior Living Facilities
Represented seniors housing client in the formation of a joint venture with a Massachusetts developer to acquire a partial interest in a real estate sale agreement, and the acquisition of a portion of the property for the development of two assisted living facilities. The real estate transaction involved the subdivision of the property, creation of easements and other rights to the lots not acquired by the client, and the imposition of historical preservation and affordable housing covenants on the property as a condition of development. Also assisted the joint venture to obtain construction financing.
Acquisition of Bare Land for Subdivision Development
Represented client in the acquisition of bare land in Gresham, Oregon for development of a 250 lot subdivision, including negotiation of a secured purchase money loan and take-down agreements to sell the future lots to a residential homebuilder.
Sale of Senior Living Businesses & Property with Added COVID-Related Negotiations
Represented two affiliated senior living facilities in the sale of the businesses and underlying real property. This sale involved a payoff of a Housing and Urban Development (HUD) loan and coordination with the buyer for a replacement HUD loan at closing. In light of reduced occupancy amidst COVID-19, Tonkon Torp assisted the parties in negotiating a purchase price holdback to be released to either buyers or seller over the course of a year based on post-closing occupancy rates.
Defeasance of Portland Hotel Loan
Advised Portland hotel owner on defeasance and simultaneous new loan transaction secured by hotel real estate.
Portland Warehouse Acquisition with SBA Financing
Represented the buyer of a Portland warehouse with SBA financing. Issues included purchase and sale negotiations, title, survey, environmental, property inspection, other due diligence review, negotiation of a short term lease back to the seller, and forming a new entity to take title.
Yakima, Washington Apartment Purchases
Represented the purchaser of two apartment complexes in Yakima, Washington. Handled the negotiation and closing of acquisition loan as well as title review, title clearing, and due diligence for client.
Advising National Senior Living Clients
Ongoing representations of major retirement residence companies in their real estate transactions, business sales and acquisitions, and construction and loan transactions, including Fannie Mae and Freddie Mac loans, throughout the United States. Recent projects included sales of independent living facilities in California and purchase of others in Louisiana, and numerous construction and permanent loan transactions nationally.
Senior Housing Facility Acquisition
Negotiated and closed $14.2 million acquisition and acquisition loan for a national owner and operator of senior housing facilities. The client sought to purchase an existing facility that had been developed and built by an inexperienced operator in Louisiana. The seller's loan was in default and the property was at risk to go into foreclosure, making it essential that the deal be completed with speed and efficiency.
Senior Living Loan
Negotiated and closed a $16.7 million permanent loan with local counsel based in Camp Hill, Pennsylvania for an independent living facility in Bethlehem, Pennsylvania.
Office, commercial, and industrial leasing transactions representing landlords and tenants. Negotiating, drafting, and reviewing purchase and sale agreements for real estate concerns and businesses. Ted also handles secured lending, leases, easements, sale-leaseback transactions, and other transactions.
Negotiating and drafting organizational documents for joint ventures, limited liability companies, and other entities for real estate investments.
Represents Retirement Companies
Representing owners of retirement residence companies. Ted counsels on real estate transactions, business sales and acquisitions, and construction and permanent loan transactions throughout the United States, including Fannie Mae and Freddie Mac loans.
Small Business Administration
Represented the buyer of a warehouse in N.W. Portland with Small Business Administration (SBA) financing, including negotiating and drafting the purchase and sale agreement, a short-term lease back to the seller, and forming a new entity to take title.
Timberland & Mill Purchases & Sales
Timberland and mill purchases and sales in Oregon, Idaho, Montana, California and Washington. He also provides day-to-day advice on real estate and general business matters such as easements, timberland transactions, Sec. 1031 exchanges, and standardizing business forms.
Complex Senior Living Transaction
Represented client in transaction to manage and potentially, in the future, acquire existing senior living facilities. The transaction involved complex issues of state licensing and regulatory oversight of facilities that receive state financial assistance.
Senior Living Secured Financing
Ongoing representation of several national and regional independent and assisted living owners in complex financing transactions, including securitization and defeasance transactions.
Idaho Timberlands Purchase
Represented major forest products company in purchase of 17,000 acres of Idaho timberlands, including associated agreements and acquisition of ancillary property rights.
Tonkon Torp client Advantage Services Construction, Inc. has earned a Green Home Builder of the Year award from Earth Advantage, a nonprofit whose mission is to move the building industry towards more sustainable practices. Advantage Services Construction was named New Earth Advantage Builder of the Year for 2014 for a custom designed, modern hillside home that earned platinum certification.
Tonkon Torp is featured in an article
in the April 2011 issue of the ABA Journal. The firm’s work on the Sunwest bankruptcy case is the topic of the story, which discusses our representation of Clyde Hamstreet, the Chief Restructuring Officer for the case. The Sunwest bankruptcy concluded with a $1.2 billion deal, which was the culmination of one of the biggest and most complex bankruptcy cases of its kind ever filed in Oregon.
Tonkon Torp’s real estate and land use team completed a time-sensitive transaction that enabled the fast-growing Yakima Products, Inc., to acquire its new corporate headquarters in Lake Oswego, Oregon. Find details and more featured cases here.
Tonkon Torp’s timely and experienced loan defeasance work permitted a shopping center owner to realize the profitable sale of that real estate in a transaction that initially appeared to be financially infeasible. Find details and more featured cases here.
Attorneys David Petersen, Ted Herzog, and Duncan Delano recently provided the legal horsepower for a new, seven-lot rural residential development to be known as Trillium Estates on Chehalem Mountain. The property originally included one structure, which was slated for removal prior to development of the new parcels. Rather than the mundane bulldozing of the house, the client allowed the Newberg Fire Department to burn it down in a “burn to learn” training exercise.
Community Involvement & Activities
Washington State University Foundation
Board of Trustees
Oregon State Parks Trust
Former Chairman and Trustee
Oregon Trail Foundation, Inc.
Former Member, Board of Directors
Former Volunteer Lawyer
Christ United Methodist Church
Oregon Entrepreneurs Forum
Volunteer Lawyers Project
American Bar Association
Real Property, Trust and Estate Law Section
Seniors Housing Committee
Multnomah Bar Association
Fifty-three Tonkon Torp lawyers representing 37 practice areas have been selected for inclusion in The Best Lawyers in America® 2023. Nearly all the attorneys have been previously named to the peer-review list, and most have been listed for more than 10 years.
Tonkon Torp attorney Ted Herzog was a featured panelist at the June 8, 2022 Real Estate Conference hosted by the Real Estate Project Committee of the Oregon Society of CPAs.
Fifty-three Tonkon Torp lawyers representing 39 practice areas have been selected for inclusion in The Best Lawyers in America® 2022
Forty-nine Tonkon Torp lawyers representing 36 practice areas have been selected for inclusion in The Best Lawyers in America® 2021. A majority of attorneys have been named to the peer-review list in past years, and most have been recognized for more than five years.
Forty-eight Tonkon Torp lawyers representing 39 practice areas have been selected for inclusion in The Best Lawyers in America® 2020. A majority of attorneys have been named to the list in past years, and most have been recognized for more than five years.
For a very limited time, residential landlords can rescind some pending Notices of Termination and Notices of Rent Increases that would otherwise trigger Relocation Assistance under Portland’s new Renter Protection Ordinance. The Portland City Council passed Ordinance No. 188219 on February 2, 2017 requiring residential landlords to pay “Relocation Assistance” to residential tenants when the landlord decides not to renew an expiring fixed term rental agreement or terminates a month-to-month rental agreement for reasons other than “for cause.”
On June 11, 2007, in U.S. v Atlantic Research Corp., the United States Supreme Court solved a portion of the puzzle that has confounded so-called potentially responsible parties (PRPs) since the Court’s decision in Cooper Industries, Inc. v Aviall Services, Inc. in 2004.
Ear to the Ground Blog
Given the continuous fluctuation in business immigration, tariffs, and international relations, it shouldn’t be a surprise that foreign investment into the U.S. (especially by China), has slowed. And yet, it is still happening. The Oregon real estate market will continue to be attractive to foreign investors due to our region’s overall stability. From individual immigrant-owned businesses to notable marquee international operations such as Adidas, Vestas, and Shimadzu, foreign investment creates jobs and powers numerous commercial and residential real estate transactions in Oregon every year.
Accurately forecasting and predicting terrorism exposure within the United States is difficult, to say the least. To make matters more challenging for the commercial real estate industry, reinsurers largely stopped reinsuring terrorism insurance policies at the same time that commercial real estate lenders and investors increasingly required terrorism coverage.
LIBOR, a key interest-rate benchmark for commercial loans, is published daily by the UK’s Financial Conduct Authority (FCA). After December 31, 2021, the FCA will no longer require banks to submit their daily rates, which FCA uses to calculate LIBOR. Once that happens, it is unlikely LIBOR will continue to be published by FCA or others.
I’ve been helping clients develop and manage seniors housing projects in a national market that has experienced steady growth in recent years. Seniors housing is need-driven with many seniors moving into independent living, assisted living, or memory care facilities in their early 80s. Demographers tell us that birth rates dropped during the Great Depression, and began moving upward again about 83 years ago in 1935.
Publications & Presentations
Panelist, “Real Estate Financing Update,” Oregon Society of CPAs, June 2022
“USA Regional Real Estate Guide – Oregon,” Chambers and Partners, May 2019
Oregon CLE Chapter on Boundary Line Disputes and Encroachments