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New York Real Estate Law Reporter
What Happens to Surplus Funds in Tax Lien Foreclosures?
Stewart E. Sterk
When a sale follows a municipality’s foreclosure on a tax lien, who is entitled to sale proceeds that exceed the amount of the tax lien?
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The Bankruptcy Strategist
Do COVID-19 Rent and Eviction Protections Just Delay Inevitable Bankruptcy?
Dana Delman and John Vukmanovic
In attempts to alleviate the impact of job losses and business disruption due to COVID-19, state and local governments have passed emergency orders and regulations temporarily prohibiting evictions and extending deadlines to pay rent, among other restrictions. When those restrictions are lifted, there is no guarantee that they will have done more than delay the inevitable: eviction and bankruptcy.
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Commercial Leasing Law & Strategy
New York’s Commercial Lease Defenses to Paying Rent
Adam Leitman Bailey and Dov Treiman
Not including what may have been negotiated in a commercial lease, there are three traditional theories under which commercial tenants could seek to assert entitlement to forgiveness of their rent: frustration of purpose, impossibility of performance, and force majeure.
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Commercial Leasing Law & Strategy
Commercial Real Estate Market Lags Behind Residential Rebound
Phillip Bantz
National Association of Realtors Survey Shows Most Commercial Tenants Struggling to Pay Rent
While the residential real estate market is experiencing what appears to be a swift rebound from the coronavirus-induced slump, the commercial landscape still looks relatively bleak.
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Commercial Leasing Law & Strategy
Twitter Chat Recap
Several members of Commercial Leasing Law & Strategy’s Board of Editors and contributors to Law.com and our ALM sibling GlobeSt.com took part in a Twitter chat on “Do We Need Offices Anymore?”
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New York Real Estate Law Reporter
Court of Appeals Upholds Pipeline Condemnation
Eamon P. Joyce and Cassandra Liu
This article focuses on a recent decision upholding a pipeline developer’s exercise of eminent domain under New York law in National Fuel Gas Supply Corp. v. Schueckler.
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New York Real Estate Law Reporter
Eminent Domain Law
Condemnee Entitled to Consequential Damages To Contiguous Parcel
Valuation for Prospective Use Rejected
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Commercial Leasing Law & Strategy
Legal Office of the Future — Reimagined
Bella Schiro and Misun Yoon
Many in the legal economy may be asking themselves whether they need office space at all now that everyone has been forcibly migrated to cyberspace. But having experienced work from home for several months, there is a newfound appreciation for the office workplace. But what will the office look like when we return to it?
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Commercial Leasing Law & Strategy
Cash Flows for Commercial Leases During COVID-19
Jonathan Koevary and Robert Gagne
To say the least, for those companies that filed for bankruptcy on the eve of the COVID-19 shutdowns, the strategies — and available cash flows to pay landlords — did not go as planned.
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Commercial Leasing Law & Strategy
Mezzanine Lenders and Foreclosure Sales During COVID-19
Jeffrey B. Steiner and Scott A. Weinberg
This article reviews a recent case, D2 Mark LLC v. OREI VI Investments LLC, to understand how the court’s decision may provide mezzanine lenders with guidance in structuring a UCC foreclosure sale auction in the COVID-19 landscape so as to strengthen their position against any claims by the mezzanine borrower that the sale is not commercially reasonable.
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Commercial Leasing Law & Strategy
Will Pandemic Lead to More SARE Filings?
Lidia Dinkova
Single-asset real estate bankruptcies (SAREs) are streamlined reorganizations for debt taken out by borrowers on just one property, giving them a three-month window to propose a restructuring plan.
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New York Real Estate Law Reporter
New York Court Allows J.Crew to Shutter Under Terms of Mall Lease Despite Continuous Operations Provision
Danielle C. Lesser
Malls across America, long suffering even before the rise of COVID-19, are now forced to confront a wave of store closures. Troubled retailers will, without doubt, seek to close their failing mall locations. To stem these efforts, landlords have applied to courts for injunctive relief to force stores to remain open and operating, despite lagging sales, through the enforcement of the “continuous operations provision” found in mall leases.
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New York Real Estate Law Reporter
Real Property Law
Insufficient Hostility to Establish Title By Adverse Possession or Prescriptive Easement
Adverse Possession Claim Against Governmental Land Upheld When Land Not Held for Governmental Purposes
No Preliminary Injunction in Action to Declare Sale Contract Void
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Commercial Leasing Law & Strategy
New York Court Allows J.Crew to Shutter Under Terms of Mall Lease Despite Continuous Operations Provision
Danielle C. Lesser
Malls across America, long suffering even before the rise of COVID-19, are now forced to confront a wave of store closures. Troubled retailers will, without doubt, seek to close their failing mall locations. To stem these efforts, landlords have applied to courts for injunctive relief to force stores to remain open and operating, despite lagging sales, through the enforcement of the “continuous operations provision” found in mall leases.
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New York Real Estate Law Reporter
Development
Despite Proximity, Neighbor Lacked Standing to Challenge Alleged Zoning Violation
Neighbors Entitled to Remedy Against Landowner’s SLAPP Suit
Area Variance Denial Overturned
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New York Real Estate Law Reporter
Eminent Domain Law
Condemnation Upheld Despite Benefit to Private Party
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Commercial Leasing Law & Strategy
Real Estate Loan Workout: Exchange of Enhancements for Concessions
Richard S. Fries
As a result of the coronavirus pandemic, a property owner might reach out to its lender for urgent, needed debt relief. The lender, which strives for a performing asset, an on-going relationship with its customer makes concessions. In exchange for these concessions, the lender should obtain credit and legal enhancements., which should also enable the lender to make concessions that are more meaningful to the property owner, its investors, its tenants and its business.
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New York Real Estate Law Reporter
Co-ops and Condominiums
Sponsor Correctly Calculated Reserve Fund
Shareholder Did Not Breach Survival of Closing Affidavit
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Commercial Leasing Law & Strategy
Law Firm Leasing Drops During COVID-19
Christine Simmons
Overall, the pandemic will likely result in long-term changes for law firm offices. While law firm leasing activity will eventually pick up, firms may decrease their overall footprints, taking up 10% to 15% less square footage because some people will continue working from home.
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New York Real Estate Law Reporter
Landlord & Tenant Law
Lease Provision Does Not Bar Conversion Claim for Damages After Issuance of Warrant of Eviction
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New York Real Estate Law Reporter
Landlord’s Action Does Not Give Rise to Deceptive Practice Liability
Stewart E. Sterk
Jeffrey Turkel’s lead article in last month’s issue focused on the Regina Metropolitan case, in which the Court of Appeals invalidated a number of…
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Commercial Leasing Law & Strategy
Creative Strategies for Landlords and Tenants to Survive the COVID-19 Shutdown
Dana Delman and John Vukmanovic
When COVID-19-related restrictions imposed by state and local governments are lifted, there is no guarantee that they will have done more than delay the inevitable: eviction and bankruptcy. Modifications should be used to cut risk and losses. If at all possible, landlords and tenants should cooperate now to avoid that outcome.
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New York Real Estate Law Reporter
Co-ops and Condominiums
Condominium Lien Enjoys Priority Over Mortgage
Business Judgment Rule Precludes Challenge to Cancellation of Shares
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Commercial Leasing Law & Strategy
Non-Monetary Defaults in Commercial Leases: A Difficult Eviction
Ashlyn Robinson Banks
“I want them out!” When a tenant stops paying rent, landlords usually have this reaction. But what about those tenants faithfully paying rent while breaching other provisions of the lease? This article examines the eviction of a commercial tenant for non-monetary defaults.
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New York Real Estate Law Reporter
Real Property Law
Conditional Payments Do Not Restart Statute Of Limitations On Foreclosure Action
Questions of Fact About Purchasers’ Good Faith In Making Mortgage Applications
Questions of Fact Remain on Implied Easement Claims
Presumption of Hostility Supports Adverse Possession Claim
Questions of Fact Remain About County’s Liability for Fuel Oil Discharge
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New York Real Estate Law Reporter
Development
Prohibition of Advertising Sign Upheld
Failure to Consider Rezoning Application Not Subject to Judicial Review
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Commercial Leasing Law & Strategy
“VARA-90”: What Landlords Can Do to Stop the Aerosol Spread … of Graffiti Artists’ Claims
Joseph I. Farca
How did the artists qualify for protection under the Visual Artists Rights Act, how could the owners know whether the artists had achieved “recognized stature” warranting prevention of their works’ destruction, and what could the owners have done to avoid liability while retaining the right to dispose of their properties as they saw fit?
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New York Real Estate Law Reporter
Landlord & Tenant Law
City Entitled to Airbnb Records
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Commercial Leasing Law & Strategy
Effects of COVID-19 Shutdown on Commercial Real Estate
Katheryn Tucker
Much attention has been paid to the devastating effects of the COVID-19 pandemic on income, unemployment and cash flow for businesses. But new research takes an eye opening look at what the shutdown of many businesses may do to the worth of commercial real estate.
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New York Real Estate Law Reporter
Regina Metropolitan: What Practitioners Need to Know
Jeffrey Turkel
The Court’s primary holding in Regina is that retroactive application of the Part F amendments would violate the Due Process clause of the U.S. Constitution.
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New York Real Estate Law Reporter
Real Property Law
Statutory Damages Awarded Against Building Owner Who Whitewashed Artwork
Sale Contract Bars Action for Fraudulent Misrepresentation, Concealment, and Inducement
Ambiguity In Restrictive Covenant Limits Enforcement
Constructive Trust Imposed Based On Alleged Oral Agreement
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New York Real Estate Law Reporter
Development
Buffer Zone Included In Rezoned Area for Purposes of Town Law’s Supermajority Requirement
Short-Term Rentals Do Not Qualify As Single-Family Use
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New York Real Estate Law Reporter
Landlord & Tenant Law
Insurance Failure Precludes Exercise of Purchase Option
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New York Real Estate Law Reporter
Eminent Domain
Additional Allowance to Condemnee Disallowed
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Commercial Leasing Law & Strategy
Commercial Lease Requirements During the Pandemic
Terrence Dunn
Can a commercial tenant that is required to be closed during the COVID-19 pandemic be relieved of, or does it have a defense to, the obligation to continue to pay rent? The short answer is possibly yes, but the situation is unprecedented and the answer may have to be determined in litigation.
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Commercial Leasing Law & Strategy
COVID-19: Should Landlords Apply Security Deposits to Unpaid Rents?
Ira Fierstein
There are currently several bills in various stages of being passed into law in several states as of early April, which would restrict, on a temporary basis, the eviction of commercial tenants from their leased premises for failure to pay rent, Whether these bills get signed into law and survive judicial scrutiny remains to be seen. The question then is whether a landlord may enforce the security deposit section of its lease and take the deposit should the tenant miss a rent payment.
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Commercial Leasing Law & Strategy
5 Lease and Finance Options To Help Conserve — or Even Create — Capital
Barry Steel
Five options available that leasing and financing can help law firms not only to deploy their business continuity requirements in the short term, but also improving liquidity now and better position the firm for their future.
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New York Real Estate Law Reporter
Challenge to Property Tax Rejected
Stewart E. Sterk
No one disputes that the property tax system in New York City is byzantine. In Tax Equity Now LLC v. City of New York, the First Department confronted what it viewed as a very different question: is it illegal. The court concluded that it is not, rejecting a variety of claims and leaving any reform to the legislature.
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New York Real Estate Law Reporter
Real Property Law
Equitable Mortgage Enjoys Priority over Mortgage Recorded After Filing of Notice of Pendency
Purchaser from Church Not Entitled to Specific Performance
Questions of Fact Preclude Summary Judgment on Prescriptive Easement Claims
Hearing Necessary to Determine Whether Mortgagee De-Accelerated Mortgage
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New York Real Estate Law Reporter
Landlord & Tenant Law
Loft Board Lacks Authority to Supervise Legalization Once Tenants Withdraw Application
Tenant Entitled to Relief from Failure to Timely Exercise Renewal Option
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New York Real Estate Law Reporter
Development
Neighbor Has Standing to Seek Damages for Violation of Zoning Ordinance
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New York Real Estate Law Reporter
Co-ops and Condominiums
Co-op Entitled to Attroneys’ Fees
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Commercial Leasing Law & Strategy
What a Difference 3 Months Can Make
Lisa Brown
The coronavirus has brokers guessing as to how this will affect leasing in the short term, and a report says leasing activity is likely to have a degree of decline in transaction volumes compared to pre-crisis expectations
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Commercial Leasing Law & Strategy
Coronavirus ‘Brutal’ for Real Estate Transactions as Lenders Hit Brakes on Financing
Lidia Dinkova
Much like other everyday activities, real estate transactions are coming to a halt because lenders are holding back over the coronavirus pandemic.
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Commercial Leasing Law & Strategy
Force Majeure and the Doctrine of Impossibility
John G. Kelly
The COVID-19 pandemic is resulting in landlords and tenants closely reviewing a clause in their lease that was long considered unimportant boilerplate. Yes, we are referring to the “force majeure” provision.
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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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