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Commercial Leasing Law & Strategy
Ten of the Worst Words to Hear In a CRE Deal
Joseph J. Ori
There are many positive words and terms of wisdom in the CRE industry: That was a great deal, great management equals great value, etc. Conversely, there are also some very scary words and phrases in the CRE industry. Below are 10 of the worst.
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Commercial Leasing Law & Strategy
The Real Estate Leasing Lawyer’s Role In an M&A Deal With a Reps & Warranties Policy
Aaron L. Pawlitz
This article provides an overview of the most commonly-accepted purposes of an RWI policy and an overview of the RWI policy underwriting process.
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Commercial Leasing Law & Strategy
Can a Tenant Enforce a Right of Refusal In Third-Party Sale?
Alan Nochumson and Alex Goldberg
In Tri-Outdoor v. Keyser, the Pennsylvania Superior Court recently addressed whether a tenant could specifically enforce a right of first refusal provision contained in a lease agreement where the landlord sold the leased premises to a third-party purchaser.
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Commercial Leasing Law & Strategy
When to Raise Equity Capital In a Fund Structure
Joseph J. Ori
Gravitating to a fund structure is also no easy task and as with any investment program, the first one is always the most difficult. However, the benefits far outweigh the costs for any experienced real estate investment firm. The primary concern with a fund structure is who will sell the equity in the fund.
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Commercial Leasing Law & Strategy
CRE Case Roundup
CLLS Staff
A compilation of commercial real estate rulings in courts across the country.
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Commercial Leasing Law & Strategy
Law Firms Increasingly Opting for Relocations Rather than Renewals
Jessie Yount
Law firms are increasingly opting for relocations rather than renewals, as firms look to sell talent on their unique identity and flexible approach to work.
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Commercial Leasing Law & Strategy
Options for Commercial Property Owners With Distressed Assets
William (Bill) Lobel
Cyclical challenges in the economy are nothing new, and 2022 is shaping up to be that kind of year for business owners nationwide. This is likely to result in a greater need for the services of bankruptcy attorneys as business owners face a mounting wave of distressed financial assets.
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Commercial Leasing Law & Strategy
Effects of Inflation on Commercial Real Estate
Steven J. Reed
While growth of the job market and the economy are the most important factors affecting commercial real estate, the emergence of historic rising inflation has its effects as well.
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Commercial Leasing Law & Strategy
Fifth Circuit Ruling Gives Commercial Lessees Likely Protection In Bankruptcy Court Free and Clear Asset Sales
Michael L. Cook
The Fifth Circuit signaled that it would not approve in later cases a bankruptcy court asset sale of real property that summarily cuts off the rights of the debtor’s lessees.
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Commercial Leasing Law & Strategy
PA Ruling Shows Power of Obtaining Mechanic’s Lien
Alan Nochumson and Clementa Amazan
In Pennsylvania, if a contractor is not paid for repairs or improvements made to real estate, the contractor can either take the traditional path of litigation and sue the property owner by filing a complaint under contractual or equitable theories or file for a mechanics’ lien that clouds title to the real estate.
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Commercial Leasing Law & Strategy
7 Concerns for Commercial Real Estate Investors In a Volatile Market
Joseph J. Ori
It appears that the CRE industry is entering a period of high volatility with the Fed promising to raise interest rates, soaring inflation, the war in…
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Commercial Leasing Law & Strategy
How the SEC’s ESG Disclosure Rules Might Effect Commercial Real Estate
Erik Sherman
After years of discussions and hints, the Securities and Exchange Commission (SEC) finally released its proposed environmental disclosure rule for public company reporting. Getting the information and making the determinations will be a challenge for any sized company that comes under the SEC’s purview. But there are significant questions about who is responsible for gathering and reporting information from commercial real estate facilities.
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Commercial Leasing Law & Strategy
Don’t Forget to Read Those Condominium Documents
Mark Morfopoulos
No matter how carefully you reviewed the lease, if you don’t read the condominium documents you could be missing critical information relating to the unit and the building that is available only by reviewing the condominium documents.
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Commercial Leasing Law & Strategy
Opportunities and Best Practices for Lenders In Financing Distressed Business Acquisitions
Joel H. Levitin and Richard A. Stieglitz Jr.
As distressed M&A activity inevitably heats up, strategic buyers and equity sponsors that have sat on the sideline for an extended period of time will likely have expanding interest in purchasing viable, but over-leveraged, businesses that are being sold out of bankruptcy.
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Commercial Leasing Law & Strategy
Second Circuit Narrows Borrower’s Ability to Pursue Class Damages In Federal Court for Failure to Timely Record Mortgage Satisfactions
Jonathan Robbin
The decision in Maddox v. Bank of N.Y. Mellon Trust certainly affords safeguards to lenders and mortgagees in that Maddox now narrows a borrower’s ability to pursue class damages in federal court for lenders and services for failure to timely record mortgage satisfactions.
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Commercial Leasing Law & Strategy
Short-Term Leases Can Create Value Uncertainty
Erik Sherman
When executives aren’t sure what normal will look like in where employees work, they can’t tell how much office space they need. While some sectors of commercial real estate are stable in terms of tenants, others are a question. That’s leading to some pushing for shorter-term leases — ironically, both by tenants and some owners — as well as headaches for underwriting as the predictability of tenancy is up in the air.
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Commercial Leasing Law & Strategy
Common Issues In Commercial Property Bankruptcies
Robert K. Scheinbaum and Philip W. Allogramento III
As the commercial real estate market undergoes seismic shifts, companies may find themselves in situations where their tenant or their landlord has filed for bankruptcy protection. Questions then quickly arise, such as if and how a landlord may evict a bankrupt tenant, whether a bankrupt tenant may remain as a lessee and continue to occupy the premises, and how to measure damages for a landlord in this situation, both before bankruptcy and going forward post-petition.
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Commercial Leasing Law & Strategy
Strategies and Drafting Techniques for Loan Workouts and Enforcement In 2022
Richard S. Fries
A series of strategies and drafting techniques relevant to commercial real estate loan workouts and enforcement. This article isn't a “how-to” primer on loan enforcement or restructuring the distressed loan, it identifies some of the current solutions and insights that have been observed, implemented and proposed during this pandemic-impacted workout cycle.
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Commercial Leasing Law & Strategy
Why Commercial Insurance Prices Are Rising
Ted Knutson
Commercial insurance prices are rising as increased costs from climate change, the supply chain crisis and inflation take hold, Westchester, a commercial property, and casualty insurance underwriter, said in a new report.
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Commercial Leasing Law & Strategy
Tenth Circuit: Government COVID Closure Orders Do Not Trigger Coverage for Loss of Business Income
Stephen Masciocchi and Tina Van Bockern
In a recent case, the Tenth Circuit joined other circuits in holding that government closure orders due to the COVID-19 pandemic do not trigger insurance coverage for loss of business income, reasoning that the temporary inability to use property caused by COVID shutdown orders doesn’t involve a covered physical loss of property.
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Commercial Leasing Law & Strategy
Pros and Cons of Master Leases
Peter E. Fisch and Salvatore Gogliormella
Section 365 of the Bankruptcy Code grants debtors the ability to assume or reject any executory contract or unexpired lease. Debtors must assume or reject a lease in its entirety and are not free under Section 365 to assume only favorable provisions of a lease. Courts, however, have consistently held that they will not find a multi-property master lease to be a unitary lease merely because such properties are demised in a single document.
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Commercial Leasing Law & Strategy
Pleading Alter Ego Liability In Commercial Lease Disputes
Efrem Z. Fischer and Edward E. Klein
The COVID-19 pandemic has challenged commercial landlords to rely on various legal theories to protect their legitimate rights. As federal, state and local governments enact laws to protect tenants from evictions and/or the enforcement of personal lease guarantees, a landlord’s counsel must seek avenues to press its clients’ rights against any entity who may be liable for outstanding rent arrears due and owing under a commercial lease.
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Commercial Leasing Law & Strategy
Five Things Law Firm Leaders Need To Do As People Return to the Office
Mark Beese
While we all look forward to returning to normal, the normal we left in early 2020 remains elusive. For those who are leading teams (such as executive committees, practice and industry groups, client teams, administrative departments, and firm committees), the struggle is more complex.
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Commercial Leasing Law & Strategy
COVID-19 and Lease Negotiations: Tenant Security
Ann E. Ryan and Adrienne B. Koch
The pandemic has highlighted vulnerabilities in two of the most popular forms of tenant security — guaranties and cash security deposits. This article examines the impact of the pandemic on each of those types of security and offers some suggestions for landlords going forward.
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Commercial Leasing Law & Strategy
Selective Reassessment of Only Commercial Properties Violates the Uniformity Clause
Alan Nochumson and Clementa Amazan
The Commonwealth Court of Pennsylvania recently analyzed whether the City of Philadelphia’s selective reassessment in tax year 2018 of only commercial properties at current market value violated the Uniformity Clause and the Assessment Law’s requirement that the City assess all properties annually at actual market value.
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Commercial Leasing Law & Strategy
NY Appellate Courts Defer to Board of Standards In Zoning Cases
A recent case in New York's First Department highlights the extreme deference appellate courts accord Board of Standards and Appeals (BSA) determinations interpreting the extraordinarily complex zoning scheme.
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The Bankruptcy Strategist
Retention of Title Disputes: Don’t Take the Uniform Commercial Code for Granted
Eva D. Gadzheva, Jeremy M. Downs and David E. Morrison
This article reminds us of the conflict-of-laws analysis at the heart of such retention of title disputes, and then discuss the multi-step UCC analysis that is also required.
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Commercial Leasing Law & Strategy
COVID-19 and Lease Negotiations: Casualty Provisions
Ann E. Ryan and Adrienne B. Koch
First in series of articles that will examine specific aspects of the COVID shift in which commercial lease negotiations are seeking protection against unlikely events. Part 1 focuses on casualty provisions.
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Commercial Leasing Law & Strategy
Migrating Businesses Help Grow South Florida CRE Market Despite, and Because of, the Pandemic
Melea VanOstrand
The South Florida office market has seen a shift due to COVID, with some downsizing and modifications of office buildings, but the influx of new potential tenants has helped mitigate any potential downsides other markets may have seen.
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Entertainment Law & Finance
Proposed Changes In UCC Address Virtual Currency Financing
Barbara M. Goodstein
Financial institutions are beginning to accept virtual currencies as collateral for financings. Could this become common for independent film productions and other entertainment industry ventures? This article examines the scope of UCC Article 9 with a focus on virtual currencies, taking into consideration issues of classification and perfection.
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Commercial Leasing Law & Strategy
Say it Ain’t So! Tortious Interference with a Sublease By a Master Landlord
Marisa L. Byram and Tyler V. Friederich
A South Carolina appellate court recently affirmed a trial court’s decision that a landlord had tortiously interfered with a sublease by terminating the master lease after a fire damaged the subject building and such landlord was liable to the subtenant for punitive damages.
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Commercial Leasing Law & Strategy
Force Majeure Clauses In Construction Contracts In the Aftermath of COVID-19
Jeffery R. Mullen and Fred Warren Jacoby
We are only beginning to scratch the surface of the effect on the construction litigation visited on us by COVID-19-related impacts. However, the pandemic and its continuing impact has reinforced the importance of planning for the unexpected — and undefined — when negotiating construction contracts.
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Commercial Leasing Law & Strategy
Frustration-of-Purpose Use In Commercial Leases During the Pandemic
Joshua Wurtzel
The use of the frustration-of-purpose doctrine to absolve commercial tenants of their obligation to pay rent could signal headwinds for the commercial real estate market — and the economy more generally.
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Commercial Leasing Law & Strategy
Strategies for Creating Value In Today’s CRE Market
Joseph J. Ori
A look at some value-added strategies a commercial real estate owner/manager must adopt to create value in this tough environment.
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Commercial Leasing Law & Strategy
Issues Relating to RLUIPA Safe Harbor and the Equal Protection Clause
Steven M. Silverberg
Recently the United States District Court for the Southern District of New York grappled with issues relating to local zoning restrictions on houses of worship.
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Commercial Leasing Law & Strategy
COVID-19’s Impact on Real Estate Valuations
Michael Rikon
Valuation of real estate during contemporary times is challenged and will continue to be so for several years. In a forced sale, a court should only consider pre-COVID-19 data whether it be comparable sales from 2018-2019, or financial data from the same period.
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Commercial Leasing Law & Strategy
Confession of Judgment Provisions In Commercial Leases
Megan E. Moyer and Kevin M. Levy
In states where they are enforced, a properly drafted confession of judgment clause in a commercial lease can be one of the most valuable tools in a landlord’s toolkit for enforcing its leases and preserving its remedies.
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Commercial Leasing Law & Strategy
Government Policies Could Be Concern for Commercial Real Estate Lenders
Les Shaver
Significant concerns aren’t necessarily issues caused by real estate lending, borrowing or underwriting. They’re caused by government policy.
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Commercial Leasing Law & Strategy
Negotiating with Small Office Tenants on Pandemic Issues
Erika Morphy
Small businesses make up the backbone of the commercial office sector. Until recently, by virtue of their small size, they had little sway with landlords when it came to renegotiating or negotiating a lease. Then the pandemic happened.
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Commercial Leasing Law & Strategy
Drafting a Fair Force Majeure Provision In the Wake of COVID-19
Scott R. Lippert and Darcy Baboulis-Gyscek
Only a handful cases have addressed force majeure clauses in commercial real estate agreements in the wake of the pandemic, which has produced conflicting views as to whether performance was excused.
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Commercial Leasing Law & Strategy
Retail Lease Workout Trends Show ‘We’re All In This Together’
David Samole
There have been plenty of cases during the pandemic that shape the landlord-commercial tenant dynamic both in Chapter 11 bankruptcies and in workouts.
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Commercial Leasing Law & Strategy
New Normal Will See Shift In How Commercial Real Estate Is Done
Aron Solomon
By moving away from demand for traditional offices and office space, employers will be able to select from a much broader range of talent and a much greater geographical range of places to find and use these employees.
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Commercial Leasing Law & Strategy
Underwriting Adjusts As Pandemic Continues
Erika Morphy
Underwriting clearly has been affected by the pandemic-led downturn. Lenders are using higher vacancies and reserves to underwrite, leading to more conservative loan proceeds.
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Commercial Leasing Law & Strategy
Law Firms Should Take Advantage of Tenant Market Post-COVID-19
Timothy M. Hazel and Gaetan J. Alfano
Due to COVID-19’s impact, the commercial office market should fundamentally shift in favor of tenants for the next several years. Law firm tenants should find an environment characterized by friendly concessions, options across asset classes and price ranges, and limited competition for space.
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Commercial Leasing Law & Strategy
Office Market Recovery Brings Opportunity
Les Shaver
The office market weathered a pandemic-fueled revolution last year, but both owners and tenants responded with impressive adaptability and endurance. Those things bode quite well for the sector’s recovery.
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Commercial Leasing Law & Strategy
Foreclosure Statute of Limitations
Stewart E. Sterk
In a set of foreclosure cases decided in late February, the Court of Appeals resolved some of the questions that have plagued New York’s court system in the aftermath of last decade’s mortgage crisis.
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Commercial Leasing Law & Strategy
Open Space and the Conundrum of High Stakes Zoning Disputes
Philip E. Karmel, James P. Colgate and Judith M. Gallent
The New York Court of Appeals’ recent decision in Peyton v. BSA held, in the context of a zoning lot containing several residential buildings, that the Zoning Resolution of the City of New York does not require an area to be accessible to all residents of the zoning lot for the area to qualify as “open space.”
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Commercial Leasing Law & Strategy
NY Court of Appeals Rules on Damages Clauses In Commercial Leases
Linton Mann III and William T. Russell Jr.
In The Trustees of Columbia University in the City of New York v. D’Agostino Supermarkets, the NY Court of Appeals split on the issue of whether the relevant damages clause in a commercial lease was unenforceable as a matter of law because it was so grossly disproportionate to the ascertainable amount due upon full performance.
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Commercial Leasing Law & Strategy
The Small Business Reorganization Act: How It Started. How it’s Going. Where to Next?
Jack O’Connor
This article provides a brief overview of the SBRA and these first several months of its use — especially in light of the COVID-19 pandemic — concluding that in 2021, Congress should permanently adopt the CARES Act’s expanded definition of a “small business debtor” as including businesses with up to $7.5 million in aggregate non-contingent liquidated debts.
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Commercial Leasing Law & Strategy
Challenges for Real Estate Lenders When Borrowers Default
Jeffrey Steiner and David Broderick
During periods of distress in the real estate industry, if a lender is not going to enter into a consensual workout or loan restructuring with their defaulted borrower, the lender will be presented with the choice of either enforcing rights under its loan documents or marketing and selling the distressed loan.
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