The Leasing Hotline
Highlights of the latest commercial leasing cases from around the country.
Proposed Revisions to the ADA's Physical Accessibility Guidelines Released
On July 23, 2004, the long-awaited proposed revisions to the Americans With Disabilities Act's (ADA) physical accessibility guidelines, the "ADAAG," were published in the Federal Register. Though the changes will take effect on Sept. 21, 2004, they will not be enforceable until adopted in their final form by the U.S. Department of Justice (DOJ). Since the proposed ADAAG have been completely reformatted to conform more closely to existing uniform accessibility standards and certain uniform building codes, it will be necessary to compare the current and proposed ADAAG specifications to understand the full scope of the changes. The proposed guidelines involve more than 230 pages of text and commentary, and it is not yet known what impact these changes will have on construction activities or how these guidelines will force landlords to modify existing leases to shift some of the responsibility of these new guidelines to tenants.
Features
Tenant Exit Strategies: Planning Ahead for a Way Out
When landlords and tenants negotiate a lease, particularly a retail lease, they typically have in mind a long-term relationship. The parties enter the relationship optimistically with the hope that the tenant's business will be successful at the particular location, that the entire project will be a success and that the tenant's operations will enhance the value of the property. Given the long-term nature of most retail leases, it is vital for tenants to think ahead, while at the negotiating stage, and anticipate how their business or the shopping center in which they are located may change (for better or worse) in the future. Tenants should negotiate maximum flexibility in their leases to ensure that their leases do not contain unacceptable obstacles to the tenant's ability to exit from the lease in the event circumstances change and the tenant no longer wants to remain in the lease. This need for flexibility will be tempered by the landlord's desire to retain the original tenant with which it negotiated and is comfortable. This article discusses two types of tenant exit strategies. First, those that are beneficial to the tenant ' while the tenant remains the tenant under the lease ' such as the alteration or elimination of an operating covenant. Second, those that allow the tenant to transfer its interest in the lease whether by merger, stock sale, assignment, sublease or otherwise.
In the Spotlight: Ground Lessee/Sublessor Attorney Should Address the 'Financibility' Factor
Commercial real estate professionals often draft ground leases where the Ground Lessee/ Sublessor intends to sublease the parcel to a single-use tenant entity (the "Tenant"). (<i>See</i> Weinberg, Scott "Issues to Address When Drafting a Ground Lease for a Single-Use Tenant," <i>Commercial Leasing Law & Strategy</i>, June 2004.)
Abandoned and Unused Cables: A Hidden Liability Under the 2002 National Electric Code
In an effort to minimize the release of toxic gasses from cables in the event of fire, the 2002 version of the National Electric Code ("NEC"), promulgated by the National Fire Protection Association, sets forth new guidelines requiring that abandoned cables must be removed from buildings unless they are located in metal raceways or tagged "For Future Use." While the NEC is not, in itself, binding law, most jurisdictions in the United States adopt the NEC by reference in their state or local building and fire codes. Thus, noncompliance with the recent NEC guidelines will likely mean that a building is in violation of a building or fire code. If so, the building owner may also be in breach of agreements with tenants and lenders and may be jeopardizing its fire insurance coverage. Even in jurisdictions where the 2002 NEC has not been adopted, it may be argued that the guidelines represent the standard of reasonable care and could result in tort liability for the landlord if toxic gasses from abandoned cables are emitted in a fire. With these potential liabilities in mind, this article discusses: 1) how to address the abandoned wires and cables currently located within the risers, ceilings and other areas of properties, and 2) additional considerations in the placement and removal of telecommunications cables going forward.
Decision of Note: <b>Talk Show Not Liable For Assault</b>
The Supreme Court of New York, Appellate Division, First Department, held that a television talk show didn't owe a duty to a minor who claimed that she was sexually assaulted when she had traveled to New York to appear on a segment of the program.
Features
Update On Webcasting Royalty Rates
Part Two of Two Part One covered statutory licenses for sound recordings and performing rights licensing for musical compositions for webcasting purposes.…
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MOST POPULAR STORIES
- Coverage Issues Stemming from Dry Cleaner Contamination SuitsIn recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.Read More ›
- 'Insurable Interest' and the Scope of First-Party CoverageThis article reviews the fundamental underpinnings of the concept of insurable interest, and certain recent cases that have grappled with the scope of insurable interest and have articulated a more meaningful application of the concept to claims under first-party property policies.Read More ›
- The Flight to Quality and Workplace ExperienceThat the pace of change is "accelerating" is surely an understatement. What seemed almost a near certainty a year ago — that law firms would fully and permanently embrace work-from-home — is experiencing a seeming reversal. While many firms have, in fact, embraced hybrid operations, the meaning of hybrid has evolved from "office optional," to an average required 2 days a week, to now many firms coming out with four-day work week mandates — this time, with teeth.Read More ›
- AI or Not To AI: Observations from Legalweek NY 2023This year at Legalweek, there was little doubt on what the annual takeaway topic would be. As much as I tried to avoid it for fear of beating the proverbial dead horse, it was impossible not to talk about generative AI, ChatGPT, and all that goes with it. Some fascinating discussions were had and many aspects of AI were uncovered.Read More ›
- The Powerful Impact of The Non-Foreclosure Notice of PendencyRPAPL ' 1331 and RPAPL ' 1403 Notices of Pendency are requisite elements for foreclosing a mortgage. <i>See, Chiarelli v. Kotsifos</i>, 5 A.D.3d 345 (a notice of pendency is a prerequisite to obtaining a judgment in a mortgage foreclosure action); <i>Campbell v. Smith</i>, 309 A.D.2d 581, 582 (a notice of pendency is required in a foreclosure action under RPAPL Article 13). In contrast, an ex parte CPLR Article 65 Notice of Pendency (the "Notice") is not required but it is a significant tool in an action claiming title to, or an interest in or the use or enjoyment of, another's land. The filer does not have to make a meritorious showing or post a bond. Article 65 provides mechanisms for the defendant-owner to vacate the Notice that caused an unilaterally imposed restraint on its realty. But, recent case law establishes the near futility of such efforts if the plaintiff has satisfied the minimal statutory requisites for filing the Notice.Read More ›