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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.
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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
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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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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Buyer’s Anticipatory Repudiation Results In Forfeiture of Down Payment
Constructive Trust Claim Supports Notice of Pendency
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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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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Double Rent Holdover Provision Enforceable; Late Fee Unenforceable As a Penalty
Extrinisic Evidence Inadmissible to Vary Terms of Lease Agreement
Court Upholds Holdover and Prejudgment Interest Provisions
Unsigned Lease Agreement Not Binding
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Commercial Leasing Law & Strategy
Rulings on COVID-19 Defenses In Commercial Real Estate
Massimo F. D’Angelo and Gregory Wong
Despite some new variants and a possible resurgence in the fall, the pandemic closures seem to be finally coming to an end. And with it, so too have most of the COVID-19 defenses in court cases involving commercial leases. However, all may not be foreclosed for a commercial tenant, particularly where a tenant is able to point to a specific provision of its lease that could excuse its obligation to pay rent during the closure of its business.
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New York Real Estate Law Reporter
Eminent Domain Law
NYRE Staff
Claimants Failed to Establish That Property Would Have Been Rezoned
Increased Award Proper Where Prior Regulation Might Have Constituted a Taking
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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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New York Real Estate Law Reporter
Removing Restrictive Covenants
Stewart E. Sterk
In Rockwell v. Despart, the Third Department recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
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Commercial Leasing Law & Strategy
Commercial Lease Assumption Under Chapter 11 Bankruptcy
Paul A. Rubin and Hanh V. Huynh
Given the potentially harsh consequence of failing to timely assume a vital lease, a Chapter 11 debtor must be vigilant to avoid a forfeiture. It is important to know, however, that all might not be lost even if the debtor misses this deadline.
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New York Real Estate Law Reporter
Eminent Domain Law
Adjustment for Condemnation Blight Overturned
Current Use Constitutes Highest and Best Use
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Partner Had Authority to Sell Tenancy In Common Property
Title Report Put Subsequent Lender on Inquiry Notice of Prior Mortgage
Administrator Did Not Breach Covenant Against Grantor’s Acts
Co-Tenant Establishes Title By Adverse Possession
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Commercial Leasing Law & Strategy
Removing Restrictive Covenants In New York
Stewart E. Sterk
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
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The Bankruptcy Strategist
It May Not Be Too Late to Assume That Lease
Paul A. Rubin and Hanh V. Huynh
Given the potentially harsh consequence of failing to timely assume a vital lease, a Chapter 11 debtor must be vigilant to avoid a forfeiture. It is important to know, however, that all might not be lost even if the debtor misses this deadline.
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New York Real Estate Law Reporter
Development
NYRE Staff
Denial of Area Variance Upheld
Enactment of Historic Preservation Law Did Not Require Hearings
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Commercial Leasing Law & Strategy
Use and Enforcement of SNDAs In the Hotel Industry
Todd E. Soloway and Bryan T. Mohler
This article examines the agreement — known as a Subordination, Non-Disturbance and Attornment Agreement (SNDA) — typically used by hotel lenders, owners and managers to set forth their respective rights upon a foreclosure, and consider disputes that may arise when a party seeks to enforce its SNDA rights.
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Shareholder Not Entitled to Withhold Maintenance Payments for Habitability Breach
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Commercial Leasing Law & Strategy
Regulatory Compliance and Investor Demand for Transparency Driving ESG Efforts
Paul Bergeron
Regulatory considerations and investor demand for transparency are increasingly important drivers behind Environmental, Social and Governance (ESG) disclosure and reporting frameworks, according to a report issued by The CRE Finance Council (CREFC) based on responses from its members.
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE STaff
Class Certification Appropriate for Claim of Improper Deregulation
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Commercial Leasing Law & Strategy
High M&A Activity In CRE Expected to Continue, Despite Sky-High Pricing
Lynn Pollack
Merger and acquisition activity across the CRE spectrum is likely to continue to be high, though deals will likely be concentrated across the industrial and residential sectors, according to Deloitte.
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New York Real Estate Law Reporter
When Do COVID-19 Shutdown Orders Excuse Lease Guarantors?
Stewart E. Sterk
Section 22-1005 of the New York City Administrative Code provides relief for individuals who guaranteed commercial leases when the tenant defaulted as a result of government orders issued during the early days of the COVID-19 pandemic. In recent months, however, litigation has emerged about the scope of that relief.
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Questions of Fact Remain About Whether Landlord Had Released Corporate Tenant from Liability
Yellowstone Injunction Does Not Require Proof of Likelihood of Success
Guaranty Expired With Tenant’s Initial Lease Term
Illegal Use Does Not Preclude Rent Stabilization Status
Guarantor Immunity Does Not Apply to Pre-COVID Breaches
Class Certification Appropriate for Claim of Improper Deregulation
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Statements By Condo Board Members Cloaked In Common Interest Privilege
Shareholder Entitled to Maintenance Abatement for Breach of Warranty of Habitability
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Deference to Trial Court’s Determination on Mortgage Priority
No Broker Commission for Sale After Expiration of Tail Period
Co-Owner Who Did Not Execute Mortgage Not Subject to Equitable Lien By Mortgagee
Insufficient Evidence of Delay to Support Laches Defense Against Claim to Set Aside Deed As a Forgery
Statements Did Not Defeat Hostility In Adverse Possession Claim
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Commercial Leasing Law & Strategy
Applying ‘Part Performance’ In Practice
Adam Leitman Bailey and John M. Desiderio
The doctrine of part performance can overcome the strictures of the Statute of Frauds when parties enter into unwritten business deals, or into written business deals with unwritten ancillary terms and they do not contemplate all of the possible circumstances that might arise in the course of their dealings.
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Commercial Leasing Law & Strategy
Do COVID-19 Shutdown Orders Excuse Lease Guarantors?
Stewart E. Sterk
Section 22-1005 of the New York City Administrative Code provides relief for individuals who guaranteed commercial leases when the tenant defaulted as a result of government orders issued during the early days of the COVID-19 pandemic. In recent months, however, litigation has emerged about the scope of that relief.
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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
Long Term Demand Should Shield Commercial Real Estate from Inflation Impact
Lynn Pollack
The U.S. economy is “still strong” and will support commercial real estate space demand, though inflation will remain a multi-year headwind, forcing the Fed to tighten monetary policy. And though rising interest rates may restrain CRE transaction activity, it won’t be on a broad basis, with effects most visible in the property types and markets with the most aggressive pricing run-up over the last few years.
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Commercial Leasing Law & Strategy
Commercial Assets Feel Pinch of Climbing Interest Rates and Inflation
Erik Sherman
Inflation revs up the acceleration engine and, as a response, the Fed makes the biggest single hike in interest rates in four decades, with the promise of more to come. The changes in monetary policy are causing rising issues for capital markets and financing for commercial real estate.
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New York Real Estate Law Reporter
Supreme Court Again Addresses Municipal Sign Regulations
Steven M. Silverberg
In 2015, the U.S. Supreme Court applied strict scrutiny to a sign regulation as it related to directional signs placed by a local congregation that held services at different locations each week. In April 2022, the Court took another look at the issue of strict scrutiny relating to “off-premises” signs in City of Austin, Texas v. Reagan National Advertising.
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Habitability and Harassment Claims Survive Motion to Dismiss
COVID-19 Does Not Trigger Frustration of Purpose or Impossibility Defenses
Tenant Entitled to Actual Damages for Landlord Breach, But Not to Suspension Payment
Renovations Qualified Apartment for High-Rent Vacancy Decontrol
COVID-19 Does Not Excuse Failure to Pay Rent
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Unit Owner Not In Possession Cannot Prevail on Wrongful Ejectment Claim
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Commercial Leasing Law & Strategy
A Primer on Landlord Exculpatory Provisions In Leases
Marisa L. Byram and Garrett L. Kinkelaar
Keystone Specialty Services Co. v. Ebaugh
Practitioners should take note that depending on the jurisdiction, a well-drafted exculpatory clause may afford additional protections to a commercial landlord, even from its own negligent acts.
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Commercial Leasing Law & Strategy
Commercial Real Estate Market Sees Shift Toward ‘Densification’ As Firms Look Long Term
Jessie Yount
Real estate executives say the construction of the office of the future is well underway within the legal industry, despite a dip in leasing activity at the beginning of the year. However, there is a shift toward “densification,” as firms take advantage of favorable market conditions and make longer-term commitments.
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Commercial Leasing Law & Strategy
Supreme Court Addresses Municipal Sign Regulations, Again
Steven M. Silverberg
In 2015, the U.S. Supreme Court applied strict scrutiny to a sign regulation as it related to directional signs placed by a local congregation that held services at different locations each week. The Court took another look at the issue of strict scrutiny relating to “off-premises” signs in the case of City of Austin, Texas v. Reagan National Advertising , in which the majority concluded that strict scrutiny should not apply to determining whether the off-premises sign regulations at issue violated the First Amendment.
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Commercial Leasing Law & Strategy
Commercial Real Estate Market Optimistic
Paul Bergeron
The commercial real estate industry is having little trouble shrugging off today’s challenging economic situations and its optimism is brewing with recent pandemic restrictions being lifted, according to a state of the market survey from DLA Piper.
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Commercial Leasing Law & Strategy
Landlord & Tenant Law Case Update
Stewart E. Sterk
COVID-19 Does Not Trigger Frustration of Purpose or Impossibility Defenses
Tenant Entitled to Actual Damages for Landlord Breach, But Not to Suspension Payment
COVID-19 Does Not Excuse Failure to Pay Rent
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New York Real Estate Law Reporter
Making Sense of the 421-A Rent Concession Appeals
Jeffrey Turkel
Landlords initially renting up new RPTL 421-a buildings routinely give incoming rent-stabilized tenants rent concessions to account for the fact that construction may be ongoing, and that there may still be punch list items in the apartments. This seemingly innocuous practice, however, has led to class-action litigation wherein tenants allege that rent concessions are part of a fraudulent scheme that results in massive building-wide overcharges under the Rent Stabilization Law.
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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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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Purchaser of Mixed-Use Building, Not Master Lessee of Residential Units, Liable for Rent Overcharges
Questions of Fact About Liability for Broker Commission After Expiration of Brokerage Agreement
Statute of Limitations Does Not Bar Strict Foreclosure Action
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Commercial Leasing Law & Strategy
New Workplace Strategies for Commercial Real Estate Companies
Kelsi Borland
Almost every company is rethinking workplace strategy in the wake of the pandemic — and commercial real estate companies, which are office users in their…
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New York Real Estate Law Reporter
Eminent Domain Law
NYRE Staff
Evidence Supports Award of Severance Damages
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The Bankruptcy Strategist
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
Questions of Fact About Liability for Broker Commission After Expiration of Brokerage Agreement
Stewart E. Sterk
In an action to recover a brokerage commission, the Appellate Division affirmed a broker's appeal of denial of its summary judgment motion, holding that questions of fact remained about seller’s liability for a commission after expiration of the brokerage agreement.
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Prior Landlord’s Purchaser of Loft Tenant’s Improvements Exempted Unit from Rent Regulation
Notice of Termination Did Not Meet Federal Standards
Tenant Entitled to Actual Damages for Landlord Breach, But Not to Suspension Payment
Tenant Entitled to Preliminary Injunction Against Use of Video Cameras In Interior of Premises
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New York Real Estate Law Reporter
Development
NYRE Staff
Neighbors Have Standing to Challenge Use Variance for Operation of Concrete Manufacturing Plant
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Commercial Leasing Law & Strategy
7 Post-Pandemic Commercial Property Tax Tips
Cris K. O’Neall
As post-pandemic market values fluctuate due to higher prices, property owners need to adopt strategies to keep their assessed property values down. As we emerge from COVID-19 here are seven key considerations to minimize property tax assessments even as prices increase.
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New York Real Estate Law Reporter
Drafter Not Bound By Its Own Deed Modification
Yoram Nachimovsky and Kenneth Gelnick
When the city, as a seller of real estate, attaches a document to the deed at closing, but the deed does not refer to that document, may the buyer introduce evidence to establish that the document was intended to clarify the deed description?
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