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New York Real Estate Law Reporter
Court of Appeals Upholds Privatization of Interior Landmark
Stewart E. Sterk
The New York City Landmarks Preservation Law authorizes the Landmarks Preservation Commission (LPC) to designate interior landmarks as well as exterior landmarks. An interior site is eligible for designation only if the public has access to the site, but once the LPC has designated the interior landmark, can the LPC authorize its owner to close the landmark to public access?
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Commercial Leasing Law & Strategy
Permitted Uses: Flexibility and Adaptability
Glenn A. Browne
When negotiating permitted-use clauses under retail leases, landlords attempt to achieve the most comprehensive limitations possible so as to avoid conflicts with other tenants’ leases and violations of exclusive-use clauses that are maintained by other tenants in the retail facility. Tenants, however, should be very careful to incorporate a certain degree of flexibility and adaptability into their leases’ permitted-use clauses to take into account an evolving landscape.
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New York Real Estate Law Reporter
Development
City Not Estopped from Preventing Construction of Building Despite Longstanding Interpretation of Zoning Resolution
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New York Real Estate Law Reporter
Real Property Law
Broker Breaches Fiduciary Duty By Making Offer That Competes With Client
Amendment to Association Bylaws Not Effective Until They Are Recorded
Seller Entitled to Cancel Contract When It Could Not Clear Title
Buyer’s Waiver of Defects In Title Preclude Cancellation By Seller
Questions of Fact Preclude Summary Judgment on Mortgage Contingency Issues
Broker Not Entitled to Summary Judgment on Fraud Claim By Prior Owner
Easement By Prescription Established
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Commercial Leasing Law & Strategy
The Unlicensed Real Estate Broker in New York: Beware
Janice G. Inman
The U.S. District Court for the Northern District of New York recently determined that because New York prohibits unlicensed real estate brokers from pursuing payment in its courts for services rendered, a plaintiff who performed real estate work for a client who then did not pay had no standing to sue.
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Commercial Leasing Law & Strategy
The Best Markets for Opportunity Zone Investors
Paul Fiorilla
Opportunity zones are the latest big thing to hit the commercial real estate market, but many questions remain, including details of how deals can be structured, the best strategy for investing and just how much property there is in the zones.
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New York Real Estate Law Reporter
Landlord & Tenant Law
Failure to Procure Insurance Not a Curable Breach; Yellowstone Injunction Denied
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New York Real Estate Law Reporter
Eminent Domain
Industrial Development Agency’s Determination Rationally Related to Stated Public Purpose
Industrial Development Agency Did Not Have Authority to Condemn Land Already Used for a Public Purpose
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Commercial Leasing Law & Strategy
Negotiating Relocation Rights
Terrence M. Dunn
Despite the apparent risks, relocation provisions are frequently not a potential tenant’s priority concern when negotiating the business points of a lease. This is a serious oversight. Signing a lease with an overly broad relocation provision can lead to many issues if the landlord elects to exercise its right to relocate the tenant.
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Commercial Leasing Law & Strategy
Negotiating Relocation Rights
Terrence M. Dunn
Despite the apparent risks, relocation provisions are frequently not a potential tenant’s priority concern when negotiating the business points of a lease. This is a serious oversight. Signing a lease with an overly broad relocation provision can lead to many issues if the landlord elects to exercise its right to relocate the tenant.
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New York Real Estate Law Reporter
Covenants That Run with the Land Can Be Waived
Jeffrey Turkel
Real estate practitioners tend to think of covenants that run with the land as absolute. Another way to look at such covenants is that there are contractual in nature, and that contractual provisions can be waived or abandoned, at least by the party that benefits from them. That is what the First Department recently held in New York City Transit Auth. v 4761 Broadway Assocs., LLC.
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New York Real Estate Law Reporter
Eminent Domain Law
No Consequential Damages When State Takes Neighbor’s Land
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New York Real Estate Law Reporter
Development
Nonconforming Use Not Discontinued
Developer’s Rico, Estoppel, and Equal Protection Claims Dismissed
Denial of Area Variance Overturned
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New York Real Estate Law Reporter
Real Property Law
Affirmative Covenant Enforceable Against Successor Developer
Post-Sandy FEMA Height Requirements Might Make Restrictive Covenant Unenforceable
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New York Real Estate Law Reporter
Landlord & Tenant
Claim Based On Retaliation for Assertion of Fair Housing Rights Dismissed
Failure of Consideration a Defense In Action Against Tenant’s Guarantor
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New York Real Estate Law Reporter
Cooperatives and Condominiums
Sponsors Not Entitled to Indemnification for Faulty Construction
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Commercial Leasing Law & Strategy
Commercial Lease Terms: More Issues to Cover
Alan Nochumson
Part Two of a Two-Part Article
Last month we began discussion of several topics of interest to tenants and landlords as they negotiate leases for commercial space. We continue here with more items that should not be overlooked by either party to a commercial lease during its formulation.
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Commercial Leasing Law & Strategy
Risks of “Baseball Arbitration” in Resolving Real Estate Disputes
Gerald M. Levy
“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player’s representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.
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The Bankruptcy Strategist
A Clash Between ‘Free and Clear’ and Tenants’ Rights Under Bankruptcy Code Section 365(h)
Albena Petrakov
With the recent carnage in the retail industry, a lot of attention goes to the fate of landlords when their tenants seek bankruptcy protection. A recent case that brings balance is Revel AC Inc. v. IDEA Boardwalk, LLC.
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Commercial Leasing Law & Strategy
Case Notes
Contractual Allocation of Damage Risk Thwarts Insurer’s Subrogation Claim
Lacking Specifics, Lease Term Is Unenforceable
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New York Real Estate Law Reporter
Claim of Non-Purchasing Tenant Status Rebuffed
Deborah E. Riegel
When developers convert occupied buildings to condominiums or, less frequently, cooperative ownership, non-purchasing tenants are protected from eviction. When tenants in those buildings acquire vested rights as non-purchasing tenants is significant for developers, because the timing dictates the number of units that will be available for sale to outside purchasers. It is, therefore, no surprise that this is a highly charged and contested issue.
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Commercial Leasing Law & Strategy
10 Categories of Provisions to Consider in any Commercial Lease
Alan Nochumson
Part One of a Two-Part Article
When entering into a lease for commercial space, there are some items that should not be overlooked. Landlords and tenants alike should make sure that the following things are addressed in the lease, one way or another.
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New York Real Estate Law Reporter
Development
Cemetery Entitled to Use Variance
ZBA Usurpation of Planning Board Authority
Statutory Factors Need to Be Considered In Denial of Area Variance
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Commercial Leasing Law & Strategy
Inheriting Tenants in Default?
Ira Fierstein and Michelle Palka
An Illinois Appellate Court recently ruled in favor of a commercial tenant after a new owner acquired a commercial building and attempted to collect accrued unpaid rent owed to the previous landlord.
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New York Real Estate Law Reporter
Eminent Domain
Condemnation Award Reduced
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New York Real Estate Law Reporter
Real Property Law
Title Insurance Inducements
Purchaser’s Willful Default/Down Payment
Tortious Interference Claim Reinstated
Easement Scope
Mortgage Acceleration
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Commercial Leasing Law & Strategy
A Clash Between ‘Free and Clear’ and Tenants’ Rights Under the Bankruptcy Code’s Section 365(h)
Albena Petrakov
With the recent carnage in the retail industry, including Sears and many other retailers of all shapes and sizes, a lot of attention goes to the fate of landlords when their tenants seek bankruptcy protection.
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Commercial Leasing Law & Strategy
Case Notes
First Court’s Lack of Jurisdiction over Cause of Action Means Second Action Is Not Barred
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New York Real Estate Law Reporter
Landlord & Tenant
Landlord’s Improper Incorporation
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New York Real Estate Law Reporter
Real Property Law
Ownership of Shifting Beaches
Brokerage Commission Provision Expired
Adverse Possession/Tennis Court
Deed Obtained by False Pretenses
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New York Real Estate Law Reporter
Development
Negative Declaration/Time Bar
No Estoppel Against Village
Denial of Area Variance
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New York Real Estate Law Reporter
Landlord & Tenant
Prior Judgment Does Not Bar Breach Claim
Accommodation of Disabilities
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New York Real Estate Law Reporter
Cooperatives and Condominiums
Right to Rooftop Space
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Commercial Leasing Law & Strategy
Management Fees: Make Sure Your Lease Is Clear
Missy McCoy
There is no uniform approach relating to management fee provisions in leases, and courts will recognize inequities in the charging and payment of management fees when lease terms are ambiguous or a landlord or tenant fails to comply with the terms of its lease.
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New York Real Estate Law Reporter
First Department Construes Open Space Requirement
Stewart E. Sterk
In Peyton v. New York City Board of Standards and Appeals, the First Department faced a difficult question: when a zoning lot includes more than one building, can open space accessible to residents of one building, but not to residents of the other buildings, count as open space within the meaning of the New York City Zoning Resolution?
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New York Real Estate Law Reporter
Landlord & Tenant
Tenant’s Contractor Has Lien Against Landlord’s Interest
Stipulation of Settlement Between Landlord and Tenant Did Not Release Guarantor
Landlord Bound By Rent Mistakenly Set By Temporary Receiver
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New York Real Estate Law Reporter
Real Property Law
Lot Owner Lacks Standing to Compel Payment of Assessments
No Foreclosure Jurisdiction Over Deceased Owners
Questions of Fact Preclude Summary Judgment on Claims of Easement By Necessity and Prescription
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New York Real Estate Law Reporter
Development
Zoning Board Bound By Prior Determination
Planning Board Had Rational Basis to Require Church to Record an Easement
Special Permit Denial Overturned
Restrictive Zoning Ordinance Sustained Against Multiple Challenges
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Commercial Leasing Law & Strategy
Common-Area Risk Abatement: Who is Responsible?
Janice G. Inman
When customers, employees and others invited to or simply passing by a leased commercial property are injured, and want compensation, who will be on the hook for the costs of bodily injury and property damage — the landlord, the tenant, the maintenance and security contractor hired by them, or some combination of these?
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Commercial Leasing Law & Strategy
Commercial Rent Control in New York: Back Again?
David B. Saxe and Brett Dockwell
As retail vacancies have multiplied in New York City in recent years, some in the City Council have advocated for the reconsideration of commercial rent control, as set out in a proposed piece of legislation, the Small Business Jobs Survival Act This article provides a brief, nontechnical review of the bill and the legal and practical hurdles it faces if enacted.
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New York Real Estate Law Reporter
West Village Houses: Units Ruled Not Stabilized Despite Receipt of J-51 Benefits
Jeffrey Turkel
Ever since 2009, it has been an article of faith that a building’s receipt of J-51 benefits means that all of the apartments therein automatically become rent-stabilized. If those apartments were already rent-stabilized, they become stabilized a second time. The second layer of rent stabilization has the effect of barring luxury deregulation, at least until J–51 benefits expire. In West Village Houses Renters Union v WVH Hous. Dev. Fund, Justice Barbara Jaffe held that the tenants of 32 unsold cooperative units at the West Village Houses complex were not rent-stabilized, even though their buildings had received J-51 benefits.
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New York Real Estate Law Reporter
Development
Town Cannot Hold Back Building Permits as Financial Security
Parkland Alienation Doctrine Does Not Preclude Dock on Open Space Easement
Landowner Failed to Exhaust Administrative Remedies
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New York Real Estate Law Reporter
Real Property Law
No Duty to Maintain Bulkhead
Self-Conveyance Did Not Sever Joint Tenancy
Promissory Estoppel Not Available to Avoid Statute of Frauds
Presumption of Hostility Sustains Prescriptive Easement Claim
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New York Real Estate Law Reporter
Landlord & Tenant
Loft Tenant Subject to Rent Stabilization
Video Surveillance a Substitute for Part-Time Lobby Attendants
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Commercial Leasing Law & Strategy
What to Consider When Drafting Renewal and/or Expansion Terms in Arbitration Clauses
Elizabeth Kluger Cooper and Kimberly C. Jones
Navigating through a murky arbitration clause is no easy feat. Assuming familiarity with the basics, the following is a list of considerations that should prove valuable whether representing the tenant or the landlord.
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Commercial Leasing Law & Strategy
The Bankruptcy Code’s Inherent Limitations for Struggling Golf Courses
Daniel A. Lev
Part One of a Two-Part Article
This article describes conflicts with zoning boards and neighbors as it relates to distressed golf course properties and the methods sometimes available in the bankruptcy realm for working around the problem of restrictive covenants that run with the land.
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Commercial Leasing Law & Strategy
Case Notes
Without Contractual Consent to Inspection, Lack of Protest Doesn’t Excuse Landlord’s Trespass
Resulting Trust Found Where Commercial Property Held in Just One Partner’s Name
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New York Real Estate Law Reporter
Appellate Division Complicates the Rules for Municipalities Charging Consultants’ Fees
Steven M. Silverberg and Katherine Zalantis
In a case addressing what consulting fees (in particular attorneys’ fees) can be charged to an applicant before a Zoning Board of Appeals, the Second Department in Landstein v. Town of LaGrange found that the Town had overreached its statutory authority.
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New York Real Estate Law Reporter
Real Property Law
Co-Tenant Obtains Partition Upon Failure of Adverse Possession Claim
Questions of Fact Remain About Violation of Covenant Requiring Use As a Catholic High School
Mortgagor’s Letter Seeking Short Sale Did Not Reset Statute of Limitations on Mortgage
Failure to Construct Facility Triggers Reverter Provision in Deed
Questions of Fact About Whether Buyers Had Made Time of the Essence
No Equitable Mortgage When Statute of Limitations Bars Written Mortgage
Cotenant Entitled to Partition with Accounting
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New York Real Estate Law Reporter
Landlord & Tenant
Video Surveillance an Adequate Substitute for Lobby Attendants
Yellowstone Injunction Unavailable When Tenant Could Not Establish Willingness to Cure
Landlord Prevails In Nonprimary Residence Proceeding
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