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New York Real Estate Law Reporter
Owners Have No Constitutional Right to Expand Nonconforming Uses
Stewart E. Sterk
Can a municipality’s refusal to permit expansion of a pre-existing nonconforming use constitute a federal constitutional violation?
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New York Real Estate Law Reporter
Development
NYRE Staff
When Zoning Amendment Adds Permitted Uses In Zoning District, Landowners Subject to the Ordinance Have Standing to Challenge the Amendment
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Unit Owner’s BCL 501(c) Claim Dismissed
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Local Law Prohibiting No-Cause Evictions Pre-Empted By State Law
Contractual Indemnification Unenforceable
Indemnification Clause Enforced
Good Faith Efforts to Cure Extend Cure Period for Yellowstone Injunction
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Recorded Mortgage Does Not Remove Title Insurance Claim From Policy Exclusion When Underlying Deed Was Not Recorded
No Easement By Necessity for Parking
Lawn Mowing and Driveway Plowing Suffice to Establish Adverse Possession
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Commercial Leasing Law & Strategy
Third Circuit: Pre-Bankruptcy Commercial Lease Termination Not Fraudulent Transfer
Michael L. Cook
Is an insolvent debtor’s pre-bankruptcy termination of a commercial lease a fraudulent transfer? The circuit courts seem to be split, however a close reading of cases in the Third and Seventh Circuits shows that the reasoning of both courts can be reconciled on their facts.
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Commercial Leasing Law & Strategy
Municipality’s Refusal to Permit Expansion of a Pre-Existing Nonconforming Use Doesn’t Violate Constitution
Stewart E. Sterk
Can a municipality’s refusal to permit expansion of a pre-existing nonconforming use constitute a federal constitutional violation? The federal district court for the Eastern District of New York faced that question and awarded summary judgment to the municipality, rejecting the landowner’s substantive due process and takings claims.
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Commercial Leasing Law & Strategy
5 Most Commonly Required Guaranties In Commercial Real Estate Loans
Peter E. Fisch and Salvatore Gogliormella
In general, commercial real estate loans are non-recourse in nature and the lenders ultimately look to their collateral for the satisfaction of the borrowers’ obligations if the loan goes into default. However, lenders typically require guaranties from individuals or entities, making the guarantors personally liable for certain obligations.
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The Bankruptcy Strategist
Lease Terminations As Fraudulent Transfers
Michael L. Cook
Is an insolvent debtor’s pre-bankruptcy termination of a commercial lease a fraudulent transfer? The circuit courts seem to be split, however a close reading of cases in the Third and Seventh Circuits shows that the reasoning of both courts can be reconciled on their facts.
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Commercial Leasing Law & Strategy
The Future of the Office Real Estate Market
Anthony F. DellaPelle
It appears that at least some form of hybrid work schedules — much more than existed pre-pandemic — are likely here to stay. How these increased trends may impact the office market and demands for office space in the foreseeable future remains to be seen.
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Commercial Leasing Law & Strategy
U.S. Law Firm Leasing At Record Highs
Brenda Sapino Jeffreys
After a slump during the pandemic, U.S. law firm leasing activity hit a record level in 2022, and activity boomed during the first quarter of 2023 with leasing volume higher than in any previously recorded Q1, a new report finds.
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New York Real Estate Law Reporter
Three Takeaways from 'Casey v. Whitehouse Estates' Rent Regulation Decision
Jeffrey Turkel
On March 16, 2023, the Court of Appeals decided Casey v. Whitehouse Estates, Inc., the first Court of Appeals ruling to address rent regulation since its landmark decision in Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, the Court of Appeals unanimously reversed the First Department’s finding that the landlord’s purported fraud mandated use of DHCR’s so-called default rent formula.
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New York Real Estate Law Reporter
Development
NYRE Staff
Sand Mine Enjoys Nonconforming Use Protection
Contract Vendee Entitled to Use Variance Despite Knowledge of Ordinance’s Provisions
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Strict Liability for Excavation Damage
Easement Was Non-Exclusive
Purchaser’s Claims Barred By Merger Doctrine, Caveat Emptor
Purchaser’s Claim Based on Inoperative Elevator Dismissed In the Absence of Active Concealment
Deed Forgery Claim Survives Motion to Dismiss
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Wrongful Eviction Claim Raises Questions of Fact
Yellowstone Injunction Cure Period
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Commercial Leasing Law & Strategy
Syndicated Commercial Real Estate Loan Transactions In Today’s Market
Richard S. Fries and Darby K. Brown
Larger commercial real estate mortgage loans are often originated by a group or “syndicate” of lending institutions that each contribute a portion of the overall loan proceeds and share the benefits and risks. This article describes several significant features of a “syndicated” real estate loan that are not commonly known or understood.
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Commercial Leasing Law & Strategy
Buyout Provisions In Commercial Lease Litigation
Adrienne B. Koch
Litigation frequently involves an attempt by one party to enforce the terms of the buyout provision through specific performance. But that remedy may be less readily available than the parties might assume. This article explores the reasons why, and suggests some drafting considerations.
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Commercial Leasing Law & Strategy
Arizona Appeals Court Joins Other States In Holding COVID-19 Shutdowns Not an Excuse for Missed Rent Payments
Riley Brennan
The court affirmed a lower court’s decision granting the landlords’ motion for summary judgment, after determining the applicable force majeure provisions and common law doctrines the tenants relied on didn’t excuse payment obligations.
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Commercial Leasing Law & Strategy
What Hybrid Work Looks Like In a CRE Firm
Erik Sherman
When it comes to commercial real estate companies and hybrid work, there are those that swear one way or the other, and probably a lot more scratching their heads, trying to understand what will work best.
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New York Real Estate Law Reporter
Revision to the Definition of ‘Waters of the United States’
Steven M. Silverberg
In April of 2020, the EPA and the Department of the Army began the process of revising the definition of the term Waters of the United States (WOTUS). After the new administration took office in 2021, a new final rule was recently published. The changes are scheduled to take effect this year. The definition is significant for a multitude of land uses, as it places limitations on activities that may be conducted within and adjacent to such waters or, in some instances, requires the issuance of permits before certain activities may be conducted.
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New York Real Estate Law Reporter
Landlord & Tenant Law
HSTPA Does Not Violate Taking or Due Process Clauses
Landlord Liable for Bite By Tenant’s Dog
Tenant Not Liable As Holdover Absent Offer and Acceptance of Rent Payments
Issues of Fact Preclude Summary Judgment on Habitability Claim
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Injunctive Relief Denied In Action to Enforce Restrictive Covenant
Neighbor Lacked Standing to Enforce Restrictive Covenant
Easement Holder Entitled to Preliminary Injunction
Disposition to Husband and Wife Creates Tenancy By the Entirety
Tax Sale Notice Satisfied Statutory and Constitutional Requirements
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New York Real Estate Law Reporter
Eminent Domain Law
NYRE Staff
Condemnation Exceeded Agency’s Authority
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
No Binding Contract Between COOPA and Shareholders
Failure to Provide Notice of Mortgage Justifies Return of Downpayment In Foreclosure Sale
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Commercial Leasing Law & Strategy
New Definition of ‘Waters of the United States’
Steven M. Silverberg
In April of 2020 the EPA and the Department of the Army began the process of revising the definition of the term Waters of the United States (WOTUS). After the new administration took office in 2021, further study was conducted and a new final rule was recently published. The changes are scheduled to take effect this year, if currently pending challenges are unsuccessful.
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Commercial Leasing Law & Strategy
Negotiating Surrender Clauses In Commercial Leases
Stephanie Friese
Notwithstanding the importance of a lease to the balance sheets of both landlords and tenants, surrender provisions are commonly glossed over and consequences can be detrimental to either side.
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Commercial Leasing Law & Strategy
Liquidated Damages In Real Estate Transactions
Adrienne B. Koch and Neil S. Miller
Commercial real estate is a unique asset, making damages resulting from a breach of an agreement involving it are often difficult to measure. As a result, parties to such agreements must give careful thought to the remedies for such breach, including liquidated damages.
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Commercial Leasing Law & Strategy
Why CRE Experts Believe It’s a Good Time to Buy Office
Richard Berger
The full pain of the post-pandemic office market hasn’t been felt, since many tenants still have time left on their leases. As these leases expire, many tenants will either reduce their size or simply not renew their leases. This phenomenon means a long-term (if not permanent) reduction in the demand for office space.
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Commercial Leasing Law & Strategy
What Constitutes A Landlord’s Acceptance of a Tenant’s Surrendered Lease During COVID?
Cedra Mayfield
As pandemic-related business disruptions continue to appear on dockets statewide, a reversal by the Georgia Court of Appeals has clarified what does, or rather does not, constitute a landlord’s acceptance of a tenant’s surrendered lease.
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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
‘Best Efforts’ Clauses In Commercial Leases
Gary M. Rosenberg, Alexander Lycoyannis and Michael A. Pensabene
Undefined terms of art such as “best efforts” are often utilized in commercial leases, but the interpretation of those terms and the enforceability of the clause, when left to the courts, will turn on how the lease is drafted.
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New York Real Estate Law Reporter
The Impact of Local Law 97
Matthew Schneid
Local Law Number 97 was enacted by the City of New York to achieve reductions in greenhouse gas emissions by 2050. This is accomplished by requiring buildings to retrofit their systems with more energy efficient systems or purchase certain permitted carbon offsets.
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Commercial Leasing Law & Strategy
The Impact of New York’s Greenhouse Gas Law
Matthew Schneid
New York City's Local Law Number 97 was enacted to amend the New York City Charter and Administrative Code to achieve reductions in greenhouse gas emissions by 2050. This is accomplished by requiring buildings to retrofit their systems with more energy efficient systems or purchase certain permitted carbon offsets.
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Commercial Leasing Law & Strategy
How to Strike a Deal In a Stagnant Net Lease Market
Chad Kurz
Transactions have slowed in just about every category for commercial real estate and net lease is no exception. The reasons are myriad for that but let’s boil them down.
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New York Real Estate Law Reporter
Development
NYRE Staff
Neighbor Lacked Standing to Challenge Nonconforming Use Determination
Parking Congestion Allegations Insufficient to Confer Standing
Council’s Approval of PUD Upheld
Neighbor Had No Standing to Challenge SEQRA Determination
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Entertainment Law & Finance
Real Property Law
NYRE Staff
Open Use of Driveway Provides Constructive Notice of Unrecorded Easement
Subsequent Purchaser Qualifies As Bona Fide Purchaser Despite Notice of Prior Purchaser’s Appeal
Notice of Pendency Not a Substitute for Recording
Defect In Original Foreclosure Precludes Reforeclosure
Sellers Who Paid Tax Are Entitled to Refund of Overpayment
Easement Holder Has Right to Erect Dock
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Commercial Leasing Law & Strategy
Can ChatGPT Take the Place of Real Estate Lawyers?
Tony Alfonso
While we marvel at the myriad applications of ChatGPT, it’s important to note that this newly introduced tool has nuances which can create problems if misunderstood — especially when attempting to produce legal documents or legal advice in real estate transactions.
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Issues of Fact Preclude Summary Judgment on Habitability Claim
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Commercial Leasing Law & Strategy
The Impact of Fed Rate Hikes on CRE Financing
Erik Sherman
When experiencing pain, the natural human response is to ask when it might stop. That is what commercial real estate, among other industries, have been doing. When will inflation end and the Federal Reserve stop hiking rates?
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The Bankruptcy Strategist
Rights of Tenant to Security Deposit When Landlord Files for Bankruptcy
Andrew C. Kassner and Joseph N. Argentina Jr.
As we debate whether there will be a “soft” or “hard” landing of the economy and the resulting effect of different landings on the volume of bankruptcy filings, it is helpful to review how a bankruptcy filing affects not only rights between a creditor and the debtor, but also the respective rights of creditors against property held by the debtor.
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Amendment of Bylaws Relieves Condominiums of Obligation to Use Association for Repair Services
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Commercial Leasing Law & Strategy
Crypto Collapse Gives View of ‘Property’ Values In the Metaverse
Jack Rogers
Before CRE owners and operators create that experiential virtual shopping mall or virtual office on a metaverse platform for their tenants, they need to make sure the tenants won’t decide that the virtual experience is so good that they no longer have any use for the built portfolio.
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New York Real Estate Law Reporter
Development
NYRE Staff
Invalid Condition on Special Permit Does Not Invalidate Permit
Landmark Commission’s Certificate of Appropriateness Upheld
Area Variances Upheld
Negative Declaration on Zoning Amendment Upheld
BSA Misconstrued Curb Level Provision In Zoning Resolution
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New York Real Estate Law Reporter
How Much Deference to Public Use Determinations?
Stewart E. Sterk
How closely will New York courts scrutinize exercises of the eminent domain power? Until recently, courts have been quite deferential when entities clothed with eminent domain power have determined that private property is necessary for public use. Two recent decisions, however, suggest that there are limits to that deference.
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Tax Deed Invalid for Inadequate Notice
Mistaken Description In Foreclosure Action on Neighboring Parcel Does Not Affect Landowner’s Parcel
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Ambiguities Prevent Summary Judgment In Action on Guaranty
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Unit Owner Failed to Establish Full Title As Surviving Joint Tenant
Association Denied Summary Judgment In Unit Owner’s Claim Of Improper Waiver of Dues
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New York Real Estate Law Reporter
Eminent Domain Law
NYRE Staff
Claimant Not Entitled to Consequential Damages of Lack of Access
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Commercial Leasing Law & Strategy
Scrutiny of Eminent Domain Power
Stewart E. Sterk
How closely will courts scrutinize exercises of the eminent domain power? Until recently, courts have been quite deferential when entities clothed with eminent domain power have determined that private property is necessary for public use. Two recent decisions, however, suggest that there are limits to that deference.
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Commercial Leasing Law & Strategy
What’s Working to Get Employees to Return To the Office
Anthony Davies
We are seeing a variety of successful measures that are designed to help attorneys get what they want: a best-of-both worlds scenario where they keep some work-from-home and fold-in an opportunity to intentionally connect and collaborate with colleagues in the office.
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