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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
Read More ›
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Ambiguities Prevent Summary Judgment In Action on Guaranty
Read More ›
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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
Read More ›
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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
Read More ›
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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.
Read More ›
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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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Commercial Leasing Law & Strategy
New Bankruptcy Code May Provide Way Out of Commercial Leases
Eric Snyder
In major metropolitan areas, commercial office vacancies have skyrocketed and rents have plummeted. Tenants, required to examine their space needs post-pandemic, are eager to take advantage of the lower rents. A recent addition to the Bankruptcy Code provides these lessees with an opportunity to walk away from above-market leases.
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Commercial Leasing Law & Strategy
Commercial Real Estate’s New Darling: Retail
Paul Bergeron
Retail appears to be replacing multifamily when it comes to commercial real estate darlings. Shopping center vacancy in Q4 2022 reached its lowest level dating back to 2007 — and asking rents for shopping centers rose broadly.
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Commercial Leasing Law & Strategy
Maryland Appellate Court: COVID-19 Restrictions Not Excuse for Tenants’ Failure to Pay Rent
Allison Dunn
Looking primarily to states like Connecticut for guidance, the Appellate Court of Maryland concluded that economic challenges stemming from COVID-19 executive orders themselves are not sufficient to establish the affirmative defenses of frustration of purpose and legal impossibility for failure to pay rent.
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Commercial Leasing Law & Strategy
Seven Commercial Real Estate Investment Strategies for 2023
Joseph J. Ori
With the year starting out amid uncertainty and no small amount of pessimism, there are certain strategies that promise to play well amid the environment. Read on to find out what will work in 2023.
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New York Real Estate Law Reporter
Court Declines to Block Retroactive Application of HSTPA
Randi Beth Gilbert, Richard T. Walsh, Jillian N. Bittner, and Niles C. Welikson
The Housing Stability and Tenant Protection Act amended the Rent Stabilization Law and, among other draconian changes, severely curtailed landlords’ incentives to modernize and otherwise improve rent regulated apartments by limiting the ability to recover the costs of individual apartment improvements (IAIs) to vacant apartments.
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Commercial Leasing Law & Strategy
Development Issues for Tenants to Consider In Build to Suit Leases
Ian Sutton
There are several issues and terms to consider related to the development process that differentiate build to suit leases from a standard commercial lease that are important for the tenant to understand to effectively manage costs and effectively protect itself from delays in the development schedule.
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Commercial Leasing Law & Strategy
What Rights Does Commercial Subtenant Have In Security Deposit When Landlord Files for Bankruptcy?
Andrew C. Kassner and Joseph N. Argentina Jr.
Section 365 of the Bankruptcy Code, which governs the disposition of executory contracts, has specific provisions regarding the disposition of commercial real estate leases in bankruptcy, including the rights of a tenant to remain in possession of the leased premises when the landlord files a bankruptcy case and rejects the lease. But what rights does a tenant have with regard to the security deposit delivered by the tenant to the landlord?
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Rent Obligations of Successor Tenant to Rent-Controlled Apartment Commences At Prior Tenant’s Death
Landlord Not Entitled to Attorneys’ Fees Incurred In Defending Unsuccessful Class Action
Read More ›
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Administrator’s Deed Divested Distributees of Ownership Interest
No Rescission of Deed When Mistake Was Not Mutual
Restrictive Covenant Did Not Bar Educational Use
Issues of Fact About Mortgagee’s Knowledge of Fraud Precludes Summary Judgment
No Private Right of Action to Enforce Food Cart Regulations
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Commercial Leasing Law & Strategy
Mass. Appeals Court: Accelerating Rent As Liquidated Damages Unenforceable
Allison Dunn
The Massachusetts Appeals Court recently reversed a judgment in favor of a landlord in a tenant default matter, finding that a provision of a commercial lease that accelerated the remaining rent as liquidated damages is unenforceable as a penalty. The opinion "brings uncertainty to thousands of existing commercial lease agreements."
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Commercial Leasing Law & Strategy
Yes, There Were Non-COVID Commercial Lease Decisions During the Pandemic
Adam Leitman Bailey and John M. Desiderio
In the past two years, in litigations between commercial landlords and commercial tenants, appellate courts continued to issue decisions on topics, unrelated to COVID questions, that should interest all real estate attorneys and their clients.
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Absence of Itemized Statement Did Not Justify Cancellation of Co-Op Corporation’s Liens
Jury Trial Waiver Enforced
Statute of Frauds Prevents Enforcement of Gift of Co-Op Shares
Mitchell-Lama Occupant Successor Occupant Entitled to Injunction Tolling Exclusive Purchaser Period
Read More ›
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Landlord’s Re-Entry Not Authorized By Lease Provision
Plans to Demolish Building Supported Denial of Renewal Lease
Guarantor Entitled to Raise Questions of Fact About Entitlement to Rent Abatements
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New York Real Estate Law Reporter
RLUIPA Ripeness
Stewart E. Sterk
In Rabbi Israel Meyer Hacochen Rabbinical Seminary of America v. Town of Putnam Valley, a federal district court in the Southern District of New York dismissed a RLUIPA claim as unripe, borrowing ripeness doctrine from the takings context and declining to apply a “futility exception” to the requirement that a landowner obtain a final decision before proceeding to federal court.
Read More ›
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New York Real Estate Law Reporter
Development
NYRE Staff
Taking Claim Ripe In Light of Town’s Failure to Act
Read More ›
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Multiple Dwelling Law §302 Does Not Apply to Co-Ops
Read More ›
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New York Real Estate Law Reporter
Eminent Domain Law
NYRE Staff
Inverse Condemnation Claim Time-Barred
Read More ›
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Church’s Board Approved Sale
Questions of Fact About Ouster Precluded Dismissal of Accounting Claim Against Co-Tenant
Forgery Allegations Failed to Raise Question of Fact
No Private Right of Action to Enforce Food Cart Regulations
Read More ›
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Commercial Leasing Law & Strategy
District Court Rules on Ripeness of Claim Under RLUIPA
Stewart E. Sterk
When does a RLUIPA claim become ripe? A federal district court in the Southern District of New York dismissed a RLUIPA claim as unripe, borrowing ripeness doctrine from the takings context and declining to apply a “futility exception” to the requirement that a landowner obtain a final decision before proceeding to federal court.
Read More ›
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Commercial Leasing Law & Strategy
Severing a Master Lease Raises Thorny Issues
By Peter E. Fisch and Salvatore Gogliormella
A master lease structure is often used where a single landlord and a single tenant intend to lease multiple properties. By using a master lease structure to cover multiple properties as opposed to individual leases, the parties can streamline administration of a large-scale portfolio of properties. However, master lease severance comes with a series of complications.
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Commercial Leasing Law & Strategy
The Scrivener’s Error Doctrine In Commercial Lease Drafting
Efrem Z. Fischer
What are the limits of efforts to rescind or reform an agreement based upon a mistake? Can a mere “Scrivener’s Error” during drafting result in a wholesale extinguishing of a lease document?
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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.
Read More ›
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New York Real Estate Law Reporter
Inconsistent Property Description Does Not Invalidate Mortgage
Stewart E. Sterk
Can a purchaser of a condominium unit at the condominium board’s foreclosure sale take free of a prior mortgage by identifying errors or ambiguities in the mortgage documents? In 21647 LLC v. Deutsche National Trust Co., the District Court for the Southern District of New York rejected a bevy of claims raised by the purchaser and held that the purchaser had constructive notice of the mortgage and took subject to the mortgage’s priority.
Read More ›
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New York Real Estate Law Reporter
Development
NYRE Staff
Article 78 Proceeding Not Ripe Even Though ZBA Had Not Made a Decision Within 62-Day Time Limit
Challenge to Landmark Designation Was Ripe and Stated Plausible Taking and Due Process Claims
Landowner Did Not Acquire Vested Rights Based on Invalidly Issued Building Permit
ZBA’s Grant of Special Use Permit Upheld
Read More ›
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Commercial Leasing Law & Strategy
Commercial Bankruptcy Filings On the Rise Due to Economic Turbulence
Erich N. Durlacher
With the recent economic turbulence and pessimism, prudent lenders should be bracing themselves for the coming storm by adopting a five-point “CAPER” strategy: Communicate, Analyze, Preserve, Execute, and Resolve.
Read More ›
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Subtenant’s Lease Obligations Not Terminated By Surrender of the Premises
Tenant Complied With Lease’s Diligent Efforts Obligation
Court Upholds Holdover and Prejudgment Interest Provisions
Demolition Plans Suffice to Support Denial of Renewal Lease
Read More ›
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Commercial Leasing Law & Strategy
Specific Performance Clause May Not Be Enforced In Sale-Leasebacks
Peter E. Fisch and Salvatore Gogliormella
Specific performance is an important remedy in real estate transactions, however, it is disfavored by the courts and under certain circumstances (particularly in the case of sale-leasebacks), a specific performance clause, even if properly drafted, may not be enforced by the courts.
Read More ›
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Foreclosure Sale Purchaser Has Standing to Bring Strict Foreclosure Proceeding
Forgery Allegations Did Not Raise Question of Fact to Rebut Certificate of Acknowledgment
Read More ›
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New York Real Estate Law Reporter
Eminent Domain Law
NYRE Staff
Comparable Sales Sufficient to Support Eminent Domain Award
Read More ›
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Commercial Leasing Law & Strategy
Bankruptcy Court Opens Door for Tenants to Assume Leases After a Pre-Bankruptcy Eviction Warrant
Paul A. Rubin and Hanh V. Huynh
A recent decision in a Chapter 11 bankruptcy case in the U.S. Bankruptcy Court for the Southern District of New York highlights the significant impact that a 2019 amendment to the New York Real Property and Procedures Law will have on future disputes in bankruptcy cases where the tenant files for bankruptcy after the issuance of a warrant of eviction but before its execution.
Read More ›
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New York Real Estate Law Reporter
The Guaranty Law Only Guarantees A Broken Contract
A wave of legislation designed to aid tenants during the COVID-19 pandemic has had an outsized effect on commercial landlord-tenant relations in New York City. The bill that has attracted perhaps the most attention is known as the “Guaranty Law.”
Read More ›
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Historic District Designation Not Covered By Title Insurance
Liquidated Damages Provision Not an Unenforceable Penalty
Read More ›
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Unsigned Lease Agreement Not Binding
Requirement That Tenants Speak English Supports Fair Housing Act Claim
Nonpayment During Pandemic Not Excused By Lease’s Casualty Clause
Tenant’s Diligent Efforts to Convert Property Satisfied Lease Obligation
Read More ›
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New York Real Estate Law Reporter
Development
NYRE Staff
No Automatic Entitlement to Special Permit
Adverse Impact on Burial Sites Justified Variance Denial
Area Variance Denial Upheld
Special Permit Grant Reinstated
Read More ›
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Nonprofit Has Standing to Challenge Condominium’s Alleged Violation of Fair Housing Act
Read More ›
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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.
Read More ›
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Commercial Leasing Law & Strategy
NY’s Guaranty Law Adds to Uncertainty for Both Landlords and Tenants
Joshua Kopelowitz and Matthew J. Schenker
A wave of legislation designed to aid tenants during the COVID-19 pandemic has had an outsized effect on commercial landlord-tenant relations in New York City.
Read More ›
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Commercial Leasing Law & Strategy
How to Avoid the Claim Cap Becoming a ‘Claim Trap’
Sherry Millman and Genna Grossman
Commercial landlords should consider the steps they can take when drafting and negotiating their commercial leases to minimize the adverse impact of the claim cap in the event of a tenant bankruptcy and ensuing lease rejection.
Read More ›
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Commercial Leasing Law & Strategy
Small Business Tenants: Know Thy Lease
Chad Van Horn
Many landlords are loyal to their tenants and only increase rates at the end of the current lease. Others take a more aggressive approach. They actively find creative ways using lease restrictions to evict tenants. While this isn’t necessarily fair, it is legal.
Read More ›
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Commercial Leasing Law & Strategy
The Federal Reserve Publishes Policy on CRE Loan Accommodations and Workouts
Erik Sherman
Many in commercial real estate, especially relatively new to the industry and without extensive previous experience, are making use of leverage in ways that are problematic under the higher interest rates the Fed has instigated to head off inflation.
Read More ›
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New York Real Estate Law Reporter
Transitional Housing Arrangements Are Not Illusory Tenancies
Nativ Winiarsky
The Appellate Division Second Department recently issued a landmark ruling in Sapp et al v. Clark Wilson et al concerning two hot button issues; namely illusory subtenancies and status of transitional occupants.
Read More ›
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New York Real Estate Law Reporter
Development
NYRE Staff
Local Law Prohibiting Drive-Through Windows Requires Full Environmental Assessment Form
Area Variance Denial Upheld
Redevelopment Project Did Not Transfer Inalienable Parkland
Town Board Took Requisite Hard Look At Environmental Impact of Mixed-Use Development
Court Rejects Claim of Conspiracy to Violate Vested Rights
Read More ›
