Construing Separate Contractual Instruments As One
January 01, 2025
At times, disputes arise among parties in commercial transactions as to whether multiple contracts involving a common matter should be read as a single, integrated contract, or as separate and distinct agreements. This issue often surfaces where one or more such agreements contain arbitration clauses, but other related contracts do not.
Post-Petition Rent Obligations On ‘Residential’ Versus ‘Nonresidential’ Property
January 01, 2025
The lifeblood of any debtor operating in Chapter 11 is access to cash to maintain ongoing operations. This is particularly important in cases involving assisted living and skilled nursing facilities given the health, safety, and welfare concerns with respect to their residents. One of the most significant calls on cash involves post-petition rent obligations due on leased facilities.
No Guarantee NY's Guaranty Law Survives Constitutional Scrutiny
December 01, 2024
After nearly four years of litigation, the Second Circuit held recently that a small commercial landlord lacked standing to seek declaratory relief against the City of New York challenging the Guaranty Law under the Contracts Clause of the U.S. Constitution.
Landlord & Tenant Law
December 01, 2024
Tenant Who Stopped Paying Rent May Not Recover DamagesDoctrine of Emblements May Entitle Tenant to Collect Damages for Loss of CropsInsufficient Evidence to Support Use and Occupancy ClaimSuccessor Landlord Liable for Predecessor’s OverchargesGuaranty Law Did Not Protect Guarantor When Tenant Never Closed
Hospitality Performance Tests In the Real World
December 01, 2024
Hotel management agreements often contain language permitting a hotel owner to terminate if the hotel’s performance fails to meet certain financial metrics. This provision, colloquially referred to as the “performance test,” is touted as a form of protection for owners by providing a right to terminate (or to receive a “cure payment”) if the hotel underperforms. But the reality is performance tests are generally structured to make them difficult, if not impossible, to fail, leaving hotel owners without the financial protection they thought they bargained for — or worse.
The Risks of Office-to-Residential Conversions
December 01, 2024
Office-to-residential conversions present significant challenges to owners and developers that arise from the interrelationship among the regulatory regime, the legal restrictions and requirements of the site and the physical requirements of conversion; the resulting incremental cost of conversions mean that many potential conversions just do not pencil out.
High National Debt Is Bad for CRE
December 01, 2024
The federal debt is a huge number at $36 trillion. That has major implications for the government and the economy. Debt numbers this large automatically send out ripples the size of tsunamis. Some of them could wash over long-term Treasury yields and then flood the cost of commercial real estate capital.
