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Commercial Leasing Law & Strategy
The NY Court of Appeals Provides Important Guidance for Lease Surrender Agreements
Bruce H. Lederman
At a time when the COVID-19 crisis is causing an unprecedented number of lease defaults, a recent NY Court of Appeals decision provides both guidance and warnings to attorneys asked to negotiate and litigate leasehold surrender agreements.
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New York Real Estate Law Reporter
The NY Court of Appeals Provides Important Guidance for Lease Surrender Agreements
Bruce H. Lederman
At a time when the COVID-19 crisis is causing an unprecedented number of lease defaults, the recent Court of Appeals decision, The Trustees of Columbia University v D’Agostino Supermarkets, Inc., provides both guidance and warnings to attorneys asked to negotiate and litigate leasehold surrender agreements.
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New York Real Estate Law Reporter
Development
Stewart Sterk
Use Variance Not Necessary for Use of Home As AirBnB Rental
Merger of Back-to-Back Lots
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Commercial Leasing Law & Strategy
Extra-Judicial Evictions of Commercial Tenants During COVID-19
Adam Leitman Bailey and John M. Desiderio
This article addresses and updates the law on the self-help remedy that enables commercial landlords to regain possession of leased premises from tenants in material breach of one or more lease covenants.
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New York Real Estate Law Reporter
Real Property Law
Stewart Sterk
Stranger to the Deed Rule Does Not Bar Easement Claim
Misconduct By Mortgagor’s Lawyer Voids Foreclosure Sale
Permissive Exclusive Use of Common Driveway Does Not Extinguish Easement
Bidder At Tax Foreclosure Sale Forfeits Deposit Upon Default
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Commercial Leasing Law & Strategy
2020 Provides Roadmap for Success in 2021
Erika B. Morphy
If commercial real estate is going to have a successful 2021, it will require the ability to seek out unexpected advantages.
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New York Real Estate Law Reporter
Co-ops and Condominiums
Stewart Sterk
Mother Entitled to Partition of Co-Op Apartment
Contract Vendee Lacks Standing to Enforce Proprietary Lease Provision
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Commercial Leasing Law & Strategy
‘Frustration’ and ‘Impossibility’: Viable Defenses Amid the Pandemic?
Warren A. Estis and Alexander Lycoyannis
As the COVID-19 pandemic and its accompanying economic fallout continue to unfold, commercial tenants have increasingly come to rely on the common law doctrines of impossibility of performance and frustration of purpose as defenses to the nonpayment of rent.
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Commercial Leasing Law & Strategy
Four Class Actions Allege Rent Overcharge Chicanery
Lucas Ferrara
On Oct. 29, 2020, a Manhattan real-estate firm filed four separate class-action lawsuits highlighting three different maneuvers landlords used to evade the requirements of a tax-abatement program.
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New York Real Estate Law Reporter
Four Class Actions Allege Rent Overcharge Chicanery
Lucas Ferrara
On Oct. 29, 2020, a Manhattan real-estate firm filed four separate class-action lawsuits highlighting three different maneuvers landlords used to evade the requirements of a tax-abatement program.
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Commercial Leasing Law & Strategy
Finding Common Ground In Lease Provisions During COVID-19
Fredric P. Lavinthal and Eric M. Finkelstein
This article seeks to examine key current issues, and offers practical advice to landlords and tenants seeking common ground to address the ongoing financial toll of the pandemic.
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New York Real Estate Law Reporter
Development
Stewart Sterk
Denial of Site Plan Application Upheld
Issuance of State Permit Does Not Preclude Village’s Nuisance Claim Against Waste Disposal Facility
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Commercial Leasing Law & Strategy
Settling COVID-19-Related Commercial Lease Disputes
Frank Burke
This article examines how shutdown actions might be approached and resolved by settlement by applying a series of contract performance doctrines that inevitably arise during these types of situations.
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New York Real Estate Law Reporter
Co-ops & Condominiums
Stewart Sterk
RPAPL 881 License Granted to Enter Neighboring Condominium Unit
Allocation of Common Expenses Upheld
Condominium Owners Have Right to Vote On Matters Involving Homeowners Association
Appointment of Receiver Upheld
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New York Real Estate Law Reporter
Real Property Law
Stewart Sterk
Possibility of Reverter Enforced
Bidder At Tax Foreclosure Sale Forfeits Deposit Upon Default
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Commercial Leasing Law & Strategy
What a Biden Administration Might Mean for Commercial Real Estate
Erika Morphy
A national-led effort to push back against the virus will hopefully drive down infections enough until a vaccine becomes available. This can only help commercial real estate as it is clear that the economy will not fully recover until the coronavirus is vanquished.
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New York Real Estate Law Reporter
Eminent Domain Law
Stewart Sterk
No Deduction for Stigma Damages
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Commercial Leasing Law & Strategy
Transitioning to Remote, Electronic Signing for Transactions
Will Norton
The recent move to more remote work environments has prompted many to take a second look at not only eSignature solutions but also remote online notarization (RON).
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Commercial Leasing Law & Strategy
Floor Area Bonuses Allowed for Mixed-Used Properties Under the Philadelphia Zoning Code
Alan Nochumson and Clementa Amazan
Part Two In a Series
In this part of the series on “zoning” bonuses in the city of Philadelphia, we explore Floor Area Bonuses provided under the Mixed Incoming Housing, Green Building, and Underground Accessory Parking & Loading Bonuses.
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Commercial Leasing Law & Strategy
Commercial Real Estate Lenders Face Remedy or Relief Decision In COVID-19
Peter E. Fisch and Salvatore Gogliormella
Lenders in default scenarios face a choice of whether to exercise remedies and take over their collateral, or offer relief measures to their borrowers, either in the form of short-term forbearance or a permanent loan modification.
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Commercial Leasing Law & Strategy
Lease Default Provisions Face Scrutiny During COVID-19
Warren A. Estis and Alexander Lycoyannis
As rent defaults skyrocket in 2020, practitioners reviewing the default provisions in their clients’ commercial leases must ask themselves a crucial question: Does the provision set out a conditional limitation or a condition subsequent?
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Commercial Leasing Law & Strategy
Possible Long-Term Impacts of COVID-19 on Commercial Real Estate
Steve Vainder
While it is likely that the long-term impact of COVID-19 on commercial real estate will be significant, the short-term effect may be to accelerate sector and geographic trends that were already prevalent before the pandemic emerged.
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Commercial Leasing Law & Strategy
Valuations Forecasted to Decline in COVID-19’s Wake
Rayna Katz
Taking a pulse on the impact of the pandemic on all sectors of global commercial real estate, valuation firm Duff & Phelps, in conjunction with the GRI club, surveyed over 300 directors on the state of affairs.
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New York Real Estate Law Reporter
Ninth Circuit Upholds Most FCC Restrictions on Local Government Review of Wireless Installations
Steven M. Silverberg and Katherine Zalantis
The Ninth Circuit Court of Appeals’ recent decision in City of Portland v. Unites States significantly affects the ability of local governments to regulate the installation of so called “small cell” wireless facilities and addresses the ability of wireless providers to utilize utility poles.
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The Bankruptcy Strategist
COVID Shutdown Orders v. Statutory Rent Obligations
Brett S. Theisen and Mark B. Conlan
Even though payment of post-petition rent under a nonresidential lease (prior to rejection) has historically been an absolute requirement, bankruptcy courts, as courts of equity, have the ability during these extraordinary times to take a more flexible approach.
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Commercial Leasing Law & Strategy
Density and Dimensional Bonuses Allowed for Mixed-Used Properties Under the Philadelphia Zoning Code
Alan Nochumson and Clementa Amazan
Part One in a Series
Over the years, the city government has amended the Philadelphia Zoning Code to include incentives to increase the amount of housing units as well as the size of such building structures. Over the course of several articles, we will be discussing the “zoning” bonuses a property owner can take advantage of when developing a property within city limits. This part delves into the Mixed Income Housing Bonus, Green Roof Bonus, and the Fresh Food Market Bonus.
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New York Real Estate Law Reporter
Real Property Law
Neighbors Who Used Concrete Platform Adjacent to Fence Established Title By Adverse Possession
Lawyer Who Failed to Terminate Contract in Accordance With Seller’s Instructions Did Not Commit Legal Malpractice
Developer Strictly Liable for Damages Caused By Excavation
Contract Vendee Who Did Not Seek Mortgage In Its Own Name Failed to Comply with Mortgage Contingency Clause
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New York Real Estate Law Reporter
Co-ops and Condominiums
Fine for Refusal to Remove Dogs Upheld Under Business Judgment Rule
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Commercial Leasing Law & Strategy
New York’s Commercial Lease Defenses to Paying Rent
Adam Leitman Bailey and Dov Treiman
Few landlords and commercial tenants have been completely immune from the governmentally imposed economic shutdown and COVID-19’s wrath. Not including what may have been negotiated in a commercial lease, there are three traditional theories under which commercial tenants could seek to assert entitlement to forgiveness of their rent.
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New York Real Estate Law Reporter
Development
Development Consistent With Zoning Ordinance Did Not Require Referral to ZBA
Development Agreement Constituted Impermissible Contract Zoning
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Commercial Leasing Law & Strategy
COVID Shutdown Orders vs. Statutory Rent Obligations
Brett S. Theisen and Mark B. Conlan
Even though payment of post-petition rent under a nonresidential lease (prior to rejection) has historically been an absolute requirement, bankruptcy courts, as courts of equity, have the ability during these extraordinary times to take a more flexible approach. This clearly is an evolving trend that should continue for at least the duration of the pandemic and perhaps beyond, as bankruptcy judges and practitioners seek out creative and unique responses to difficult issues.
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New York Real Estate Law Reporter
What Happens to Surplus Funds in Tax Lien Foreclosures?
Stewart E. Sterk
When a sale follows a municipality’s foreclosure on a tax lien, who is entitled to sale proceeds that exceed the amount of the tax lien?
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The Bankruptcy Strategist
Do COVID-19 Rent and Eviction Protections Just Delay Inevitable Bankruptcy?
Dana Delman and John Vukmanovic
In attempts to alleviate the impact of job losses and business disruption due to COVID-19, state and local governments have passed emergency orders and regulations temporarily prohibiting evictions and extending deadlines to pay rent, among other restrictions. When those restrictions are lifted, there is no guarantee that they will have done more than delay the inevitable: eviction and bankruptcy.
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Commercial Leasing Law & Strategy
New York’s Commercial Lease Defenses to Paying Rent
Adam Leitman Bailey and Dov Treiman
Not including what may have been negotiated in a commercial lease, there are three traditional theories under which commercial tenants could seek to assert entitlement to forgiveness of their rent: frustration of purpose, impossibility of performance, and force majeure.
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Commercial Leasing Law & Strategy
Commercial Real Estate Market Lags Behind Residential Rebound
Phillip Bantz
National Association of Realtors Survey Shows Most Commercial Tenants Struggling to Pay Rent
While the residential real estate market is experiencing what appears to be a swift rebound from the coronavirus-induced slump, the commercial landscape still looks relatively bleak.
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Commercial Leasing Law & Strategy
Twitter Chat Recap
Several members of Commercial Leasing Law & Strategy’s Board of Editors and contributors to Law.com and our ALM sibling GlobeSt.com took part in a Twitter chat on “Do We Need Offices Anymore?”
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New York Real Estate Law Reporter
Court of Appeals Upholds Pipeline Condemnation
Eamon P. Joyce and Cassandra Liu
This article focuses on a recent decision upholding a pipeline developer’s exercise of eminent domain under New York law in National Fuel Gas Supply Corp. v. Schueckler.
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New York Real Estate Law Reporter
Eminent Domain Law
Condemnee Entitled to Consequential Damages To Contiguous Parcel
Valuation for Prospective Use Rejected
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Commercial Leasing Law & Strategy
Legal Office of the Future — Reimagined
Bella Schiro and Misun Yoon
Many in the legal economy may be asking themselves whether they need office space at all now that everyone has been forcibly migrated to cyberspace. But having experienced work from home for several months, there is a newfound appreciation for the office workplace. But what will the office look like when we return to it?
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Commercial Leasing Law & Strategy
Cash Flows for Commercial Leases During COVID-19
Jonathan Koevary and Robert Gagne
To say the least, for those companies that filed for bankruptcy on the eve of the COVID-19 shutdowns, the strategies — and available cash flows to pay landlords — did not go as planned.
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Commercial Leasing Law & Strategy
Mezzanine Lenders and Foreclosure Sales During COVID-19
Jeffrey B. Steiner and Scott A. Weinberg
This article reviews a recent case, D2 Mark LLC v. OREI VI Investments LLC, to understand how the court’s decision may provide mezzanine lenders with guidance in structuring a UCC foreclosure sale auction in the COVID-19 landscape so as to strengthen their position against any claims by the mezzanine borrower that the sale is not commercially reasonable.
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Commercial Leasing Law & Strategy
Will Pandemic Lead to More SARE Filings?
Lidia Dinkova
Single-asset real estate bankruptcies (SAREs) are streamlined reorganizations for debt taken out by borrowers on just one property, giving them a three-month window to propose a restructuring plan.
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New York Real Estate Law Reporter
New York Court Allows J.Crew to Shutter Under Terms of Mall Lease Despite Continuous Operations Provision
Danielle C. Lesser
Malls across America, long suffering even before the rise of COVID-19, are now forced to confront a wave of store closures. Troubled retailers will, without doubt, seek to close their failing mall locations. To stem these efforts, landlords have applied to courts for injunctive relief to force stores to remain open and operating, despite lagging sales, through the enforcement of the “continuous operations provision” found in mall leases.
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New York Real Estate Law Reporter
Real Property Law
Insufficient Hostility to Establish Title By Adverse Possession or Prescriptive Easement
Adverse Possession Claim Against Governmental Land Upheld When Land Not Held for Governmental Purposes
No Preliminary Injunction in Action to Declare Sale Contract Void
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Commercial Leasing Law & Strategy
New York Court Allows J.Crew to Shutter Under Terms of Mall Lease Despite Continuous Operations Provision
Danielle C. Lesser
Malls across America, long suffering even before the rise of COVID-19, are now forced to confront a wave of store closures. Troubled retailers will, without doubt, seek to close their failing mall locations. To stem these efforts, landlords have applied to courts for injunctive relief to force stores to remain open and operating, despite lagging sales, through the enforcement of the “continuous operations provision” found in mall leases.
Read More ›
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New York Real Estate Law Reporter
Development
Despite Proximity, Neighbor Lacked Standing to Challenge Alleged Zoning Violation
Neighbors Entitled to Remedy Against Landowner’s SLAPP Suit
Area Variance Denial Overturned
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New York Real Estate Law Reporter
Eminent Domain Law
Condemnation Upheld Despite Benefit to Private Party
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Commercial Leasing Law & Strategy
Real Estate Loan Workout: Exchange of Enhancements for Concessions
Richard S. Fries
As a result of the coronavirus pandemic, a property owner might reach out to its lender for urgent, needed debt relief. The lender, which strives for a performing asset, an on-going relationship with its customer makes concessions. In exchange for these concessions, the lender should obtain credit and legal enhancements., which should also enable the lender to make concessions that are more meaningful to the property owner, its investors, its tenants and its business.
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New York Real Estate Law Reporter
Co-ops and Condominiums
Sponsor Correctly Calculated Reserve Fund
Shareholder Did Not Breach Survival of Closing Affidavit
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Commercial Leasing Law & Strategy
Law Firm Leasing Drops During COVID-19
Christine Simmons
Overall, the pandemic will likely result in long-term changes for law firm offices. While law firm leasing activity will eventually pick up, firms may decrease their overall footprints, taking up 10% to 15% less square footage because some people will continue working from home.
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