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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Apartments Withdrawn from Mitchell-Lama Not Rent-Stabilized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,br>
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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Commercial Leasing Law & Strategy
A Tenant’s Perspective on SNDAs: Non-Disturbance Is Not Enough
James O’Brien
Part Two of a Two-Part Article
Part One of this article outlined the basic elements of a subordination, non-disturbance and attornment agreement (SNDA), which regulates two competing interests in the same property — tenant’s right to possess its premises pursuant to its lease and mortgage lender’s security interest in that same premises. Part Two explains the differences between the concepts of “non-disturbance” and “recognition,” while contending that lease recognition is more important to the tenant than not having its possession disturbed.
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Commercial Leasing Law & Strategy
Legal Possession: What Does It Mean?
Thomas. C. Lambert and Steven Shackman
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is “the fact of having or holding property in one’s power.” That power means having physical dominion and control over the property.
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Commercial Leasing Law & Strategy
Case Notes
Court Decides Who Is the ‘Prevailing Party’
No Duty to Collect Rent from Subsequent Tenant
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New York Real Estate Law Reporter
Knick: Opening the Federal Courts to Taking Claims
Stewart E. Sterk and Michael C. Pollack
When a landowner contends that government action has effected a taking of her property without just compensation in violation of the Fifth Amendment to the U.S. Constitution, where can she sue? Until this past June, when the Supreme Court decided Knick v. Township of Scott, the answer was clear: state court and only state court. Knick changed all that.
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New York Real Estate Law Reporter
Real Property Law
Mortgagee Entitled to Deficiency Judgment When Mortgagor’s Submissions Are Insufficient to Rebut Mortgagee’s Appraisal
Foreclosure Action Proceeds Despite Failure to Formally Discontinue Prior Foreclosure Action
Forbearance Agreement Tolled Statute of Limitations
Foreclosure Proceeding Dismissed for Lack of Standing Did Not Accelerate Mortgage
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New York Real Estate Law Reporter
Landlord & Tenant
Landlord Failed to Rebut Presumption of Willfulness
Landlord Substantiated Individual Apartment Improvements
Vacatur of Stipulation for Use and Occupancy Overturned
Occupant’s Deception Waived Succession Rights
Setting Rent for Unit First Decontrolled In 1954
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New York Real Estate Law Reporter
Co-ops & Condominiums
Commercial Units Should Be Counted In Determining Amount of Reserve Fund
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Commercial Leasing Law & Strategy
A Tenant’s Perspective on SNDAs: Non-Disturbance Is Not Enough
James O’Brien
Part One of a Two-Part Article
This article outlines the basic elements of an SNDA and will explain the differences between the concepts of “non-disturbance” and “recognition,” while contending that lease recognition is more important to the tenant than not having its possession disturbed.
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The Bankruptcy Strategist
Lessor Repossession of Property on Eve of Lessee Bankruptcy
Theresa A. Driscoll
Voluntary Turnover or Face Contempt
Lessors who repossess property immediately prior to a lessee bankruptcy filing may be required to return such property or face sanctions by the bankruptcy court. Federal courts are currently split on the issue of whether the lessor must voluntary surrender property seized pre-petition or may hold such property until such time as the debtor seeks, and obtains, an order of turnover.
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Commercial Leasing Law & Strategy
Fees on Fees
Joseph I. Farca
Collecting the Legal Fees It Cost You to Collect Legal Fees
Does your New York commercial lease form expressly provide that the landlord may recover the legal fees it incurs to recover legal fees from its tenant? If not, then the landlord may be out of luck trying to recover such “fees on fees,” as they are known. But it wasn’t always this way.
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Commercial Leasing Law & Strategy
New York’s 2019 Rent Laws: Impact on Commercial Landlords
Daniel J. Ansell
NY Gov. Andrew Cuomo signed legislation modifying existing rent laws and enacting significant landlord-tenant reforms. To date, the real estate industry has focused primarily on the sweeping impact the new laws will have on residential tenancies and the deregulation of rent-stabilized apartments. The reforms, however, also dramatically impact commercial tenancies by altering non-residential summary proceedings and significantly hampering the ability of commercial landlords to respond effectively and quickly to tenant defaults.
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The Bankruptcy Strategist
Resolving the Competing Desires of Buyers and Tenants In Bankruptcy
Daniel A. Lowenthal
A Tension Between §§363(f) and 365(h)
How do bankruptcy judges resolve the competing desires of buyers and tenants? Must buyers bid for property knowing that tenants might have the right to stay if their leases are rejected? Are tenants in jeopardy that they might have to move elsewhere to live or work?
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Commercial Leasing Law & Strategy
Case Notes
Despite State Law, Merger Extinguishes Renewal Rights of Successor in Interest
Court May Rely on Parole Evidence to Show Illegal Purpose of Sublease
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Commercial Leasing Law & Strategy
Deciphering the Tax Status of Leased Property
Janice G. Inman
Is a property leased to a farming tenant a commercial property or an agricultural property? What about a building leased to a government entity? The distinction can make a difference in the tax laws that apply to the parcel.
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Commercial Leasing Law & Strategy
How a Call to Service May Impact Rights and Obligations Under a Lease
Andrew Dector
When members of the military are be called into action, the impact could be felt right here at home by our commercial landlords, especially those whose tenants are composed of businesses owned or operated by a sole proprietor, or an owner with one or two employees.
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Commercial Leasing Law & Strategy
Lessor Repossession of Property on Eve of Lessee Bankruptcy: Voluntary Turnover or Face Contempt
Theresa A. Driscoll
Lessors who repossess property immediately prior to a lessee bankruptcy filing may be required to return such property or face sanctions by the bankruptcy court. Federal courts are currently split on the issue of whether the lessor must voluntary surrender property seized pre-petition or may hold such property until the debtor obtains an order of turnover.
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Commercial Leasing Law & Strategy
Achieving Commercial Real Estate Success Post-Brexit
Mathew B. Tully and Barry Crushell
Proper planning and the ability to pivot will help American companies with UK, EU commercial property interests.
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Commercial Leasing Law & Strategy
Case Notes
Failure to Read Lease is Not Fatal to Claim
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New York Real Estate Law Reporter
Analyzing the New Tenant Protections
Mark Hakim
On June 14, 2019, New York lawmakers approved, and Governor Cuomo signed, the “Housing Stability and Tenant Protection Act of 2019.” The Act contains a series of laws affecting all rentals within the State of New York, making permanent New York’s rent regulation laws, which proponents say will ensure that New York’s tenants are protected. However, as with any legislation, especially one that seems to have been enacted hastily, there are unintended and possibly quite adverse long-term consequences.
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New York Real Estate Law Reporter
Landlord & Tenant
40-Year Lease Invalid
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New York Real Estate Law Reporter
Real Property Law
Cancellation of Satisfaction Denied
Questions About Meeting of Minds
Statute of Limitations Bars Foreclosure Action
Merger Doctrine
Unjust Enrichment
Mortgage Acceleration Revoked
Deed Valid When Not Intended As Security for Mortgage Debt
Specific Performance Denied for Failure to Show Ability to Close
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New York Real Estate Law Reporter
Eminent Domain Law
Award of Contingent Attorney’s Fees
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New York Real Estate Law Reporter
Development
Laches Bars Action to Enjoin Construction
Community Garden Not Inalienable Parkland
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New York Real Estate Law Reporter
Let Freedom (of Contract) Ring: Yellowstone Waivers Are Enforceable
Joshua Kopelowitz and Richard Corde
This is the third in a series of articles exploring whether parties to a commercial lease can contractually waive a tenant’s right to seek a Yellowstone injunction. In a recent ruling, the Court of Appeals, in 159 MP Corp. v Redbridge Bedford, LLC, left no doubt that a contractual waiver of a right to seek a declaratory judgment and/or a Yellowstone injunction in a commercial lease is enforceable.
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New York Real Estate Law Reporter
Co-ops & Condominiums
Merger Doctrine Precludes Unit Owner’s Action Against Sponsor
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New York Real Estate Law Reporter
Development
Denial of Site Plan Upheld
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New York Real Estate Law Reporter
Landlord & Tenant
Stay of Warrant of Eviction Constitutes Reasonable Accommodation Under Fair Housing Act
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New York Real Estate Law Reporter
Real Property Law
Statute of Limitations Does Not Bar Foreclosure
Mortgage on Church Property Not Properly Authorized
Sale Contract Precludes Fraud Claim
Seller’s Representations Did Not Survive Closing
Foreclosure Action Time Barred
Mortgagor Fails to Establish Forgery
Mortgagee May Bring Action on Promissory Note; Not Limited to Foreclosure Remedy
Summary Judgment Denied In Action to Set Aside a Deed for Fraud
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Commercial Leasing Law & Strategy
Landlord Considerations When Drafting Assignment and Subletting Provisions
Mark Morfopoulos
Restricting a tenant’s right to transfer the property it is leasing to a third party is a key component to any lease. Many lenders require landlords to obtain lender consent before the transfer is effective. Failure to obtain such consent could lead to a landlord’s default under the terms and conditions of the loan documents, so it is imperative for a landlord to review its loan documents each time it receives a request from a tenant to transfer its interest under the lease.
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Commercial Leasing Law & Strategy
Retail’s New Normal
Natalie Dolce
Welcome to the evolving world of retail — a world that is geared toward changing the way people engage in retail and retail destinations feature a blend of entertainment, experiences and services.
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New York Real Estate Law Reporter
Court of Appeals Upholds Privatization of Interior Landmark
Stewart E. Sterk
The New York City Landmarks Preservation Law authorizes the Landmarks Preservation Commission (LPC) to designate interior landmarks as well as exterior landmarks. An interior site is eligible for designation only if the public has access to the site, but once the LPC has designated the interior landmark, can the LPC authorize its owner to close the landmark to public access?
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