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New York Real Estate Law Reporter
First Department Construes Open Space Requirement
Stewart E. Sterk
In Peyton v. New York City Board of Standards and Appeals, the First Department faced a difficult question: when a zoning lot includes more than one building, can open space accessible to residents of one building, but not to residents of the other buildings, count as open space within the meaning of the New York City Zoning Resolution?
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New York Real Estate Law Reporter
Landlord & Tenant
Tenant’s Contractor Has Lien Against Landlord’s Interest
Stipulation of Settlement Between Landlord and Tenant Did Not Release Guarantor
Landlord Bound By Rent Mistakenly Set By Temporary Receiver
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New York Real Estate Law Reporter
Real Property Law
Lot Owner Lacks Standing to Compel Payment of Assessments
No Foreclosure Jurisdiction Over Deceased Owners
Questions of Fact Preclude Summary Judgment on Claims of Easement By Necessity and Prescription
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New York Real Estate Law Reporter
Development
Zoning Board Bound By Prior Determination
Planning Board Had Rational Basis to Require Church to Record an Easement
Special Permit Denial Overturned
Restrictive Zoning Ordinance Sustained Against Multiple Challenges
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Commercial Leasing Law & Strategy
Common-Area Risk Abatement: Who is Responsible?
Janice G. Inman
When customers, employees and others invited to or simply passing by a leased commercial property are injured, and want compensation, who will be on the hook for the costs of bodily injury and property damage — the landlord, the tenant, the maintenance and security contractor hired by them, or some combination of these?
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Commercial Leasing Law & Strategy
Commercial Rent Control in New York: Back Again?
David B. Saxe and Brett Dockwell
As retail vacancies have multiplied in New York City in recent years, some in the City Council have advocated for the reconsideration of commercial rent control, as set out in a proposed piece of legislation, the Small Business Jobs Survival Act This article provides a brief, nontechnical review of the bill and the legal and practical hurdles it faces if enacted.
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New York Real Estate Law Reporter
West Village Houses: Units Ruled Not Stabilized Despite Receipt of J-51 Benefits
Jeffrey Turkel
Ever since 2009, it has been an article of faith that a building’s receipt of J-51 benefits means that all of the apartments therein automatically become rent-stabilized. If those apartments were already rent-stabilized, they become stabilized a second time. The second layer of rent stabilization has the effect of barring luxury deregulation, at least until J–51 benefits expire. In West Village Houses Renters Union v WVH Hous. Dev. Fund, Justice Barbara Jaffe held that the tenants of 32 unsold cooperative units at the West Village Houses complex were not rent-stabilized, even though their buildings had received J-51 benefits.
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New York Real Estate Law Reporter
Development
Town Cannot Hold Back Building Permits as Financial Security
Parkland Alienation Doctrine Does Not Preclude Dock on Open Space Easement
Landowner Failed to Exhaust Administrative Remedies
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New York Real Estate Law Reporter
Real Property Law
No Duty to Maintain Bulkhead
Self-Conveyance Did Not Sever Joint Tenancy
Promissory Estoppel Not Available to Avoid Statute of Frauds
Presumption of Hostility Sustains Prescriptive Easement Claim
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New York Real Estate Law Reporter
Landlord & Tenant
Loft Tenant Subject to Rent Stabilization
Video Surveillance a Substitute for Part-Time Lobby Attendants
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Commercial Leasing Law & Strategy
What to Consider When Drafting Renewal and/or Expansion Terms in Arbitration Clauses
Elizabeth Kluger Cooper and Kimberly C. Jones
Navigating through a murky arbitration clause is no easy feat. Assuming familiarity with the basics, the following is a list of considerations that should prove valuable whether representing the tenant or the landlord.
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Commercial Leasing Law & Strategy
The Bankruptcy Code’s Inherent Limitations for Struggling Golf Courses
Daniel A. Lev
Part One of a Two-Part Article
This article describes conflicts with zoning boards and neighbors as it relates to distressed golf course properties and the methods sometimes available in the bankruptcy realm for working around the problem of restrictive covenants that run with the land.
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Commercial Leasing Law & Strategy
Case Notes
Without Contractual Consent to Inspection, Lack of Protest Doesn’t Excuse Landlord’s Trespass
Resulting Trust Found Where Commercial Property Held in Just One Partner’s Name
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New York Real Estate Law Reporter
Appellate Division Complicates the Rules for Municipalities Charging Consultants’ Fees
Steven M. Silverberg and Katherine Zalantis
In a case addressing what consulting fees (in particular attorneys’ fees) can be charged to an applicant before a Zoning Board of Appeals, the Second Department in Landstein v. Town of LaGrange found that the Town had overreached its statutory authority.
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New York Real Estate Law Reporter
Real Property Law
Co-Tenant Obtains Partition Upon Failure of Adverse Possession Claim
Questions of Fact Remain About Violation of Covenant Requiring Use As a Catholic High School
Mortgagor’s Letter Seeking Short Sale Did Not Reset Statute of Limitations on Mortgage
Failure to Construct Facility Triggers Reverter Provision in Deed
Questions of Fact About Whether Buyers Had Made Time of the Essence
No Equitable Mortgage When Statute of Limitations Bars Written Mortgage
Cotenant Entitled to Partition with Accounting
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New York Real Estate Law Reporter
Landlord & Tenant
Video Surveillance an Adequate Substitute for Lobby Attendants
Yellowstone Injunction Unavailable When Tenant Could Not Establish Willingness to Cure
Landlord Prevails In Nonprimary Residence Proceeding
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New York Real Estate Law Reporter
Cooperatives and Condominiums
Shareholder Can Compel Board to Cooperate With Building Department
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Commercial Leasing Law & Strategy
A Little Knowledge Goes a Long Way: A High-Level Overview of Liability Insurance Provisions in a Retail Lease Agreement
Lisa A. Weixelman and Amber J. Simon
Despite their seemingly lackluster nature, well-drafted insurance provisions in a contract between a landlord and tenant can be extremely important when it comes to mitigating potential exposure and protecting a shopping center’s assets.
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Commercial Leasing Law & Strategy
Due Diligence in Distressed Community Hospitals
Deborah Williamson, Mark Andrews and Richard Y. Cheng
Many community hospitals are in distress. The causes are varied but have a constant theme — the cost to adapt to a rapidly changing environment.
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Commercial Leasing Law & Strategy
The Gold Rush of NJ Cannabis Leasing: Avoiding a Few Traps for the Unwary
Brad A. Molotsky
In this ever-evolving space, where 30 states have permitted medical cannabis and nine states have permitted adult-use cannabis, there are many issues that come into play in a lease tailored to cannabis dispensing or grow facilities. This article sensitizes the reader to the notion that these types of leases are not “business as usual,” and that they have their own nuances.
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Commercial Leasing Law & Strategy
Case Notes
Janice Inman
Two Lawsuits, No Collateral Estoppel
No Meeting of the Minds in Forged Lease
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New York Real Estate Law Reporter
Computing Rent Overcharges in Light of Roberts
Stewart E. Sterk
In Roberts v. Tishman Speyer Props, L.P., the Court of Appeals established that a landlord receiving J-51 benefits could not avail itself of the benefits of luxury deregulation.
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New York Real Estate Law Reporter
Landlord & Tenant
Landlord Liable for Overcharge Collected By Tenant
Federal Pre-Emption Exempted Apartments from Rent Stabilization
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New York Real Estate Law Reporter
Real Property Law
Broker Entitled to Commission Even Without Contract
Questions of Fact Remain About Standing to De-Accelerate Mortgage Debt
Installment Seller Cannot Enforce Forfeiture Clause in Ejectment Action
Seasonal Use Sufficient to Establish Prescriptive Easement
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New York Real Estate Law Reporter
Development
Changes in Regulatory Landscape Justify Rescission of Negative Declaration
Definition of Family Not Unconstitutionally Vague
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Commercial Leasing Law & Strategy
‘Shell Game’ Gets Away From Commercial Lease Guarantor
Janice G. Inman
In the real estate business, as in many others, the question of just who is contractually responsible when things go wrong is a recurring one, particularly when a closely-held corporation or other business entity is involved.
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Commercial Leasing Law & Strategy
Early Termination Provisions: A Landlord’s Saving Grace … If Done Right
Menachem J. Kastner and Ally Hack
The focus of this article is the “early termination provision,” a lease provision that affords landlords the tactical advantage they need. Specifically, this article seeks to: 1) guide the practitioner through the pitfalls of a poorly drafted termination provision; and 2) advise the practitioner how to craft a proper and effective termination provision.
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Commercial Leasing Law & Strategy
Case Notes
Subtenants Not Entitled to Notice Under Law
Illegal Tenant Activity Negates Insurer’s Responsibility to the Landlord
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New York Real Estate Law Reporter
Transient Rental Ban Does Not Violate Fair Housing Act
Timothy Hill
In a recent decision, the Eastern District of New York dismissed a multi-pronged challenge to a local municipal ordinance that regulates rental of property on a short-term or transient basis.
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Commercial Leasing Law & Strategy
When Can a Landlord’s Consent to Assignment be Reasonably Withheld?
Marisa L. Byram and Wheeler Frost
Assignment provisions in a commercial lease often boil down to the following seemingly simple, but more often than not complex, standard: that the lease may only be assigned or the premises subleased with the landlord’s consent, not to be unreasonably withheld. The following examples of case law illustrate how courts have construed this provision under various circumstances.
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New York Real Estate Law Reporter
Real Property Law
Neighborhood Garden Users May Establish Adverse Possession Claim
Purchaser Entitled to Return of Down Payment Upon Revocation of Mortgage Commitment After Expiration of Contingency Period
Law Firm Not Liable to Non-Client for Turnover of Escrow Funds
Law Firm Not Exempt From Claim Under RPL 265-B
Presumption of Due Execution Rebutted
Title Insurance Regulation Annulled
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Commercial Leasing Law & Strategy
Store Closing Lease Rejection in 'Shiekh Shoes'
David Kupetz and Asa Hami
Store closing or liquidation sales are a routine part of Chapter 11 cases involving retail debtors. These sales are consistently authorized by bankruptcy courts, despite lease provisions purporting to forbid them.
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New York Real Estate Law Reporter
Development
City Not Estopped to Object to Nonconforming Building
Lawyer Advertising Billboards Not Treated As Onsite Advertisements
Town Not Obligated to Consider Zoning Amendment
East Harlem Rezoning Upheld
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New York Real Estate Law Reporter
Landlord & Tenant
Failure to Register Precludes Landlord from Collecting Otherwise Lawful Rent Increases
Unlawful Entry and Detained Proceeding Requires Proof of Possession
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Commercial Leasing Law & Strategy
Case Notes
Insurance Lapse Deemed Not Curable
Uncertain Method for Determining Future Rent Dooms Renewal Rights
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New York Real Estate Law Reporter
Luxury Decontrol for Couples Living Apart
Stewart E. Sterk
The Rent Regulation Reform Act provides for deregulation of rent-stabilized apartments occupied by tenants whose income exceeds the statutory threshold. When a married couple lives in the apartment, the income of both spouses counts in determining whether the threshold is met. But suppose only one spouse occupies the apartment as a primary residence. When, if ever, should the income of the other spouse be counted towards the threshold?
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Commercial Leasing Law & Strategy
New Development Projects: The Reports of Demise Were Greatly Exaggerated
Michael R. Leighton
Numerous shopping center developers use a “layer-cake” of financing, including state and federal tax incentives to reduce the costs of debt and equity financing. The industry correctly saw that the market value of the credits would drop once the Jobs Act become effective. Such tax cut could undoubtedly impact the ability of developers to raise equity, certainly for new projects not yet placed in service.
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New York Real Estate Law Reporter
Cooperatives & Condominiums
Assignment of Right to Purchase Held Not Fraudulent
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Commercial Leasing Law & Strategy
Opportunity Zones and Commercial Real Estate
Erika Morphy
One of the many provisions of last year’s tax overhaul was the creation of a little-noticed program called Opportunity Zones, which was designed to give investors tax breaks for investments in designated areas. Now, attention is starting to pick up as the program takes shape.
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New York Real Estate Law Reporter
Real Property Law
Temple Awarded Specific Performance of Agreement to Reconvey
Inadequacy of Sale Price Insufficient to Set Aside Foreclosure Sale
Questions of Fact About Purchaser’s Ability to Perform
Knowledge of True Owner’s Claim Does Not Defeat Adverse Possession Defense
Contract Vendee Entitled to Specific Performance
Land Seller Did Not Violate General Business Law Section 349
Statute of Limitations Bars Foreclosure Claim
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New York Real Estate Law Reporter
Landlord & Tenant
Subletting Rent Stabilized Apartment for Short Periods Is Not a Curable Defect
Tenant May Terminate When Landlord Failed to Cure Landmarks Violation
Breach and Fraudulent Inducement Claims Survive Motion to Dismiss
Late Fees Not Enforceable
Subtenants Not Entitled to 30 Day Notice
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Commercial Leasing Law & Strategy
Summary of Developments Under New York’s Environmental Quality Act
Michael B. Gerrard and Edward McTiernan
The courts issued 41 decisions in 2017 under the New York State Environmental Quality Review Act, and changes were made to regulations themselves this year. This article summarizes the most important of these cases and regulation changes, and the patterns they represent.
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Commercial Leasing Law & Strategy
Case Notes
Tenant Improvement Does Not Shift Repair Responsibility Away from Landlord
Attorney Fees Not Court-Ordered Cannot Be Recouped by Withholding Rent
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New York Real Estate Law Reporter
Development
Signs Not Compliant With Zoning Ordinance
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New York Real Estate Law Reporter
Altman: Six Takeaways
Jeffrey Turkel
On April 26, 2018, a unanimous Court of Appeals held that apartments vacated between 1997 and 2011 will be considered luxury deregulated where the legal regulated rent was $2,000 or more at the time the incoming tenant moved in. The court reversed the First Department, which had held that such apartments would not be deregulated unless the rent was $2,000 or more at the time the outgoing tenant vacated.
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New York Real Estate Law Reporter
Landlord & Tenant
Unique Circumstances Require Rent Recomputation
City Human Rights Law Requires Landlord to Convert Window Into Wheelchair Accessible Entrance
“As Is” Clause Does Not Bar Claim That Landlord Intentionally Caused Defective Conditions
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New York Real Estate Law Reporter
Development
LPC’s Denial of Hardship Application Upheld
Developer’s Failure to Obtain Final Decision Deprives Federal Court of Subject Matter Jurisdiction
Spot Zoning and SEQRA Challenges Rejected
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New York Real Estate Law Reporter
Cooperatives & Condominiums
Purchaser Adequately Alleged Concealment of Defects
Space Allocation Cannot Be Changed Without Unanimous Vote; Unjust Enrichment Claim Survives
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New York Real Estate Law Reporter
Real Property Law
No Easement Created
Grant Created Valid and Alienable Possibility of Reverter
Contract Vendee Entitled to Specific Performance
Questions of Fact About Scope of Mortgage
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Commercial Leasing Law & Strategy
Waiving the Right to Yellowstone Injunctive Relief
Janice G. Inman
In a case of first impression, and after it decided public policy would not be offended, New York’s Appellate Division, Second Department, decided earlier this year that commercial tenants may contractually waive the right to seek a Yellowstone injunction in 159 MP Corp. v. Redbridge Bedford,
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