In the Spotlight: Fallout from Kelo
In <i>Kelo v. City of New London</i>, 125 S. Ct. 2655 (2005), the U.S. Supreme Court affirmed the long-standing principle that governments can condemn private land in order to carry out area-wide redevelopment projects. The decision, which affirms the legal status quo, has been spun as a grievous invasion of property rights that now threatens every American home. In this article, we review the reaction of legislators at the national level to the <i>Kelo</i> case and, by examining one state's legislative response, discuss the issues raised by state legislation.
In The Marketplace
Highlights of the latest equipment leasing news from around the country.
The Availability of Self-Help Evictions to Commercial Landlords
A landlord may re-enter leased commercial premises peaceably, without resorting to court process, in those states where it is permitted, if the right to do so is expressly reserved in a commercial lease, either a) upon the tenant's defaulting on the payment of rent or other lease terms, or b) upon termination of the lease or the tenant's abandoning the premises.
Revisiting Boilerplate or 'Miscellaneous' Lease Provisions
The May 2005 issue of <i>Commercial Leasing Law & Strategy</i> published an article presenting an overview of certain boilerplate provisions often found in the "Miscellaneous" section at the end of a commercial lease. ("Don't Forget the Boilerplate: Not All Standard Miscellaneous Provi-sions Are Standard," co-authored by Christopher A. Jones and Scott A. Weinberg.) The authors noted that after spending significant time drafting and redrafting the more "substantive" provisions of a lease, several seemingly less important provisions are frequently unexamined. The authors also noted, however, that the boilerplate provisions in leases are often not uniform, but instead, can vary dramatically, depending on whether the lease is drafted on behalf of a landlord or a tenant, and therefore, such provisions must also be carefully reviewed to ensure that they capture each party's understanding of the lease terms.
Kelo v. City of New London: Takings, 'Public Use,' Urban Waterfront Redevelopment, and the Likely Survival of the Republic
In June, the Supreme Court affirmed the power of municipal redevelopment agencies to take property by eminent domain in order to assemble large parcels for economic development. <i>Kelo v. City of New London</i>, No. 04-108 (U.S. June 23, 2005) held that a municipality may take private homes in good condition to transfer them to a private developer as a part of an integrated plan to redevelop an area of New London. This use of eminent domain did not violate the "public use" requirement of the Takings Clause of the Fifth Amendment that, at its core, prohibits the government from taking private property solely to transfer it to another private person to serve a private interest. Kelo follows the Court's decision in <i>Lingle v. Chevron U.S.A. Inc.</i>, 125 S. Ct. 2074 (2005), where the Court ruled that a state statute that was not reasonably calculated to achieve its stated goal was not, by virtue of that irrationality, an unconstitutional taking. (In that case, the statute imposed a cap on the rent that oil companies could charge service station owners in Hawaii in order to achieve the stated goal of lower gasoline prices.)
In the Spotlight: Final Rule for 'All Appropriate Inquiry' in Environmental Assessments
The U.S. Environmental Protection Agency ("EPA") has issued its final rule defining "all appropriate inquiry" for environmental due diligence necessary to qualify for the defenses to liability contained in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA" or "Super-fund"). This new rule, published in the Federal Register on Nov. 1, 2005, will apply to all property acquisitions that close on or after Nov. 1, 2006. Although the final rule dropped some of the harsher provisions of EPA's proposed standard, the new rule differs from the industry standard ASTM Standard E 1527-00 in several significant respects, which may have a significant effect upon the cost and scope of environmental site assessments conducted as part of property acquisitions. Prospective purchasers failing to follow the requirements of the final rule will not qualify for the "innocent purchaser," "adjacent landowner" or "bona fide prospective purchaser" defenses to liability under CERCLA in any post-closing litigation.
