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Commercial Leasing Law & Strategy
Force Majeure and the Doctrine of Impossibility
The COVID-19 pandemic is resulting in landlords and tenants closely reviewing a clause in their lease that was long considered unimportant boilerplate.…
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New York Real Estate Law Reporter
Neighbor Standing to Challenge SEQRA Determinations
Stewart E. Sterk
When does an immediately adjacent neighbor have standing to challenge a SEQRA determination? In Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals, the Court of Appeals made it clear that adjacent neighbors have presumptive standing to challenge zoning determinations.
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Commercial Leasing Law & Strategy
Assignment and Consent Standards in Commercial Leases
John G. Kelly
Assignment provisions in commercial leases are heavily negotiated and very important to both landlords and tenants. This article presents a brief overview of the assignment provision in commercial leases, both office and retail.
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New York Real Estate Law Reporter
Landlord & Tenant Law
Lifetime Leasehold Interest Does Not Exempt Apartment from Rent Stabilization
Exculpatory Clause Bars Tenant’s Claim for Lost Profits Resulting from Landlord’s Negligence
Landlord’s Reliance on Representations of Prior Owners Does Not Preclude Finding That Overcharge Was Willful, Resulting In Treble Damages
Tenant’s Failure to Pay Rent and Other Charges Forfeits Tenant’s Right to Renew
Questions of Fact Remain About Tenants Liability for Holdover Charges
Tenant’s Proposed Withdrawal of Application for Loft Board Coverage Void As Against Public Policy
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New York Real Estate Law Reporter
Real Property Law
Purchaser Who Did Not Record Until After Notice of Pendency In Foreclosure Action Not Entitled to Intervene
Recording of Senior Mortgage Put Junior Mortgagee on Constructive Notice
Issues of Fact Preclude Summary Judgment on Easement Claims
Purchaser’s Claim for Damages Against Dual Agent Broker Survives Summary Judgment
Title Insurance Regulations Upheld
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Commercial Leasing Law & Strategy
In the Wake of Shields: Broader Implications for Decision on Commercial Landlord Liability
David Incle Jr. and Christian R. Baillie
The Supreme Court of New Jersey recently revisited an oft-contested issue in the area of premises liability: whether a commercial landlord owes a duty to its tenant’s business invitees to maintain the premises, under a triple net lease, where the tenant is in exclusive possession of the demised premises.
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The Bankruptcy Strategist
Tips to Minimize Landlord’s Exposure When a Commercial Tenant Files Bankruptcy
Carmen Contreras-Martinez
Landlords often have clues that a tenant is going to be filing for bankruptcy, rental payments are consistently late several months in a row and the tenant falls more than a month behind on the rent. But, it can still be shocking when a landlord receives a legal notice in the mail, instead of a rent check.
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New York Real Estate Law Reporter
Development
Lawyer’s Signs on Buildings Owned By Corporation Violate Administrative Code
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Commercial Leasing Law & Strategy
Case Notes
Exculpatory Clause Bars Tenant’s Claim for Lost Profits Resulting from Landlord’s Negligence
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New York Real Estate Law Reporter
Co-ops and Condominiums
Technical Defects Do Not Invalidate Amendments to Condominium Declaration
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Commercial Leasing Law & Strategy
Reset Clauses In Ground Leases
Peter E. Fisch and Mitchell L. Berg
The purpose behind rent reset clauses is simple — to capture any change in the fair market value (and fair market rental value) of the leased property. However, the application of rent reset clauses in practice is anything but simple, and the consequences of such clauses can be significant.
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Commercial Leasing Law & Strategy
Flood and Terrorism Insurance Reauthorization: Safe for Now
Jeffrey B. Steiner and Scott A Weinberg
Federal programs have made insurance more readily accessible to protect real property in the event of a flood or an act of terrorism. These programs enable flood and terrorism insurance to be widely available at realistic price points by ensuring that the amount of the premiums payable for such insurance remain at a level that a borrower can afford, which in turn preserves the underwritten economics of the loan transaction.
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New York Real Estate Law Reporter
Local Law Banning Music Festival Is Not Unconstitutional Restraint of Speech
Steven M. Silverberg
A landowner challenged local zoning that banned holding a three-day music festival, arguing that the law was an unconstitutional violation of free speech and void for vagueness.
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New York Real Estate Law Reporter
Landlord & Tenant Law
Out of Possession Landlord’s Agreement With HUD To Maintain Premises Does Not Subject Landlord to Personal Injury Liability
Out of Possession Landlord Liability for Injuries on Abutting Sidewalk
Breach of Lease By Subsidiary Does Not Justify Piercing Corporate Veil
Tenant Not Entitled to Preliminary Injunction Requiring Landlord to Co-Operate
Landlord Must Maintain Elevator Service for Use By Single Tenant
Tenant Not Relieved of Obligation to Pay Real Estate Taxes
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Commercial Leasing Law & Strategy
Local Law Banning Music Festival Is Not Unconstitutional Restraint of Speech
Steven M. Silverberg
A landowner challenged local zoning that banned holding a three-day music festival, arguing that the law was an unconstitutional violation of free speech and void for vagueness.
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New York Real Estate Law Reporter
Real Property Law
Mechanic’s Lien Not Invalid on Its Face
Temporary Flooding Not a De Facto Taking
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Commercial Leasing Law & Strategy
Tips to Minimize Landlord’s Exposure When a Commercial Tenant Files Bankruptcy
Carmen Contreras-Martinez
Because bankruptcy can add significant expenses and increase the time it takes to remove a delinquent tenant, landlords should not allow tenants to fall far behind on rental payments. Here are some tips on how to address the issues raised by a bankrupt tenant.
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New York Real Estate Law Reporter
Co-ops and Condominiums
Business Judgment Rule Protects Parking Fee Determination
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Commercial Leasing Law & Strategy
High-Street Retail in an Adjustment Phase
Kelsi Maree Borland
High-street retail is going through an adjustment period, but for properties that check the right boxes, there are still active buyers. In some cases, even bidding wars.
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New York Real Estate Law Reporter
Development
Town Can Be Liable for Aiding and Abetting Discrimination
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Commercial Leasing Law & Strategy
Case Notes
Miami Agrees to Settle Costly Island Development Dispute After Losing Key Ruling
Breach of Lease By Subsidiary Does Not Justify Piercing Corporate Veil
Tenant Not Entitled to Preliminary Injunction Requiring Landlord to Co-Operate
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New York Real Estate Law Reporter
Court of Appeals Upholds Rent Overcharge Class Action
Stewart E. Sterk
Can tenants maintain a class action against landlords asserting a pattern and practice of illegal conduct when the various plaintiff tenants have been injured by different forms of allegedly wrongful conduct?
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New York Real Estate Law Reporter
Landlord & Tenant Law
Notice to Cure Did Not Violate RPL 235-f
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New York Real Estate Law Reporter
Development
Certificate of No Exterior Effect Upheld
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New York Real Estate Law Reporter
Co-ops and Condominiums
Emotional Support Dog Determination Upheld
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New York Real Estate Law Reporter
Real Property Law
Statute of Limitations Did Not Bar Foreclosure Action
Nuisance Claim Arising Out of Environmental Remediation Not Barred By Statute of Limitations
Mortgage Contingency Clause Did Not Give Buyer Right to Cancel
Mortgagor Did Not Prove Damages Arising Out of RESPA Violation
Questions of Fact Preclude Summary Judgment on Whether Adverse Possession Extinguished Easement
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Commercial Leasing Law & Strategy
Recent Investigation, Prosecution and Legislation Regarding Fraudulent Deeds
Carol A. Sigmond
New York City is seeing an upsurge of deed theft. Attorneys, architects, title companies, real estate brokers, agents, contractors, developers and construction managers need to be alert to this potential issue when blocks of properties are assembled for development in these neighborhoods.
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Commercial Leasing Law & Strategy
Unfolding Trends That Will Dominate the Next Year
Erika Morphy
For all intents, 2019 has been good for commercial real estate. 2020, at least for the first half, promises much of the same. That is not to say that the CRE environment will be stagnant; as always there will be changes. Some of these will be subtle while others may well be more ground shaking — and likely due to outside circumstances.
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Commercial Leasing Law & Strategy
Adding Value, Reducing Risk: Peer Review for Construction Projects
Jacqueline Greenberg Vogt
In the aftermath of recent construction disasters leading to catastrophic failures and loss of life, the concept of peer review has taken on an entirely new significance. A comprehensive plan and specification peer review is an effective risk management strategy for ensuring quality construction.
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Commercial Leasing Law & Strategy
How Retailers Are Pushing the Boundaries
Kelsi Maree Borland
Entertainment and experience has become the cornerstone of retail survival in the wake of increasing online shopping. Now, top brands are starting to incorporate entertainment experiences into select markets to bush the boundaries of the traditional retail structure.
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Commercial Leasing Law & Strategy
Case Notes
Scott E. Mollen
Landlord’s Oral Request for Use and Occupancy in Commercial Non-Payment Proceeding Denied
Landlord Sought to Pierce the Corporate Veil to Recover Unpaid Rent
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Commercial Leasing Law & Strategy
Assignments and Collateral Assignments of Commercial Leases
Terrence M. Dunn
What Tenants and Landlords Should Know
There are differences between assignments of leases and collateral assignments of leases, and each has aspects that parties to these agreements should expect and look out for. Let’s discuss some of these issues.
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Commercial Leasing Law & Strategy
Why Community Groups Can Never Win Against Developers
John R. Low-Beer
The ‘Dreikausesn’ Paradox, Other Hurdles, and Suggestions for Change
Under current New York law, even the most meritorious legal challenge to property development faces insurmountable barriers once construction starts, because absent the most egregious wrongdoing, the courts will not order demolition of completed buildings, and current law makes it virtually impossible to obtain a preliminary injunction to halt construction.
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Commercial Leasing Law & Strategy
Case Notes
Janice Inman
It’s Not the Money Spent, It’s the Level of Conformance
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New York Real Estate Law Reporter
Recent Investigation, Prosecution and Legislation Regarding Fraudulent Deeds
Carol A. Sigmond
New York City, particularly gentrifying areas of Brooklyn, Harlem, and Washington Heights, are seeing an upsurge of deed theft. Attorneys, architects, title companies, real estate brokers, agents, contractors, developers and construction managers need to be alert to this potential issue when blocks of properties are assembled for development in these neighborhoods.
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New York Real Estate Law Reporter
Landlord & Tenant Law
Landlord’s Relet Does Not Relieve Breaching Tenant from Liability for Rent
Breaching Landlord Liable for Tenant’s Expenses In Preparing Leased Space
Apartments Withdrawn from Mitchell-Lama Not Rent-Stabilized
Default Formula Does Not Constitute Penalty, and Does Not Preclude Class Certification
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New York Real Estate Law Reporter
Real Property Law
Ambiguous Time of the Essence Notice Held Ineffective
Attorney Review Provision Permitted Cancellation of Contract
Mortgagee Entitled to Cancellatino of Erroneously Recorded Satisfaction
Co-Tenant Not Entitled to Appointment of Receiver
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New York Real Estate Law Reporter
Co-ops and Condominiums
Fair Housing Act Claim Against Condominium Board Dismissed
Co-Op Unit Owner Entitled to Emotional Support Dog
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New York Real Estate Law Reporter
Kuzmich et al. v. 50 Murray Street Acquisition LLC: A Deal Gone Bad for Developers Who Helped Revitalize Lower Manhattan
Alexander Lycoyannis
In Kuzmich et al. v 50 Murray Street Acquisition LLC, the Court of Appeals held that apartments in buildings receiving tax benefits under Real Property Tax Law (RPTL §421-g) are not eligible for luxury deregulation under the Rent Stabilization Law (RSL), unlike most other rent-stabilized apartments.
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Commercial Leasing Law & Strategy
Structuring Strategies for Off-Balance-Sheet Treatment of Real Property Leases
Jun Kwon
The Financial Accounting Standards Board released a new set of lease accounting standards, ASC 842, which went into effect earlier this year. Most significantly, publicly traded companies are now obligated to list all leases of 12 months or longer on their balance sheets as both assets and liabilities. Large private companies will follow suit in 2020.
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New York Real Estate Law Reporter
Real Property Law
Stewart Sterk
Former Owners Not Entitled to Surplus from Tax Foreclosure Sale
Joint Tenants Need Not Own Equal Interests
Fraud Action Not Premature Merely Because Truth of Representations Are the Subject of Pending Proceedings
Transferee from Incapacitated Person’s Attorney-In-Fact Not A Bona Fide Purchaser
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Commercial Leasing Law & Strategy
159 MP Corp.: Grateful That Majority Rejected Dissent’s Radical Approach
Howard A. Levine
Further comment and analysis is warranted on the three-judge dissent, which, if adopted by the majority, would have fundamentally altered the very foundation of New York contract law.
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New York Real Estate Law Reporter
Development
Stewart Sterk
Mining Prohibition Not Pre-Empted By State Law and Not In Violation of SEQRA
Dog Training Facility Not a Customary Home Occupation,br>
Landowner Not Entitled to Variance When Hardship Is Not Unique to the Parcel
ZBA Did Not Consider Statutory Variance Factors
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Commercial Leasing Law & Strategy
Case Notes
Janice Inman
Defense Based on Federal Law Cannot Confer Federal Jurisdiction
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New York Real Estate Law Reporter
Co-ops and Condominiums
Stewart Sterk
Action Dismissed When Unit Owners Did Not Allege Wrongful Actions Outside Scope of Board Member’s Duty As Board Member
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New York Real Estate Law Reporter
Changes in Lot Number: When Does a Purchaser Have a Duty to Inquire?
Stewart E. Sterk
Block and lot indexes prevalent in New York City were designed to make title searches simpler than those necessary under the grantor-grantee index system prevalent in many other areas of the state and country. Suppose, however, block and lot numbers change over time. To what extent are purchasers on notice of deeds recorded under a block and lot number different from the one prevalent at the time of purchase?
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New York Real Estate Law Reporter
Real Property Law
Constructive Trust Does Not Require Transfer In Reliance
Failure to Obtain Subdivision Approval Does Not Make Title Unmarketable
Accounting Necessary When Property Is Purchased With Wrongfully Appropriated Funds,br>
Church Documents Establish That Synod Did Not Wrongfully Take Local Church’s Property
Allegations of Fraud Insufficient to Extend Statute of Limitations on Foreclosure Action
Bona Fide Purchaser Prevails Over Mortgagee of Erroneously Discharged Mortgage
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New York Real Estate Law Reporter
Development
Landonwner Entitled to Nonconforming Use Status
Public Trust Claim Reinstated
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New York Real Estate Law Reporter
Landlord & Tenant Law
Tenant Not Entitled to Recover Consequential Damages for Second Hand Smoke
Tenant Failed to Establish Constructive or Actual Eviction
Failure to Send Statutory Notice Subjects Apartment to Rent Stabilization
Overcharge Claim Dismissed Because DHCR Had Primary Jurisdiction
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New York Real Estate Law Reporter
Co-ops & Condominiums
Purchaser Entitled to Return of Downpayment When Co-Op Failed to Consent
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