Why Tenants Get Stuck in Bad Leases and How to Avoid It
April 01, 2018
Tenants end up signing leases that offer little to no flexibility as their businesses expand and contract, setting the stage for economic and operational stress that could have been avoided with upfront planning and prudent lease negotiations.
As It Turns Out, <i>Yellowstone</i> Waivers Are Enforceable
April 01, 2018
Four years ago, we explored whether a commercial tenant could waive its common law right to seek a <i>Yellowstone</i> Injunction. At that time, there was no appellate authority directly on point. This all changed on Jan. 31, 2018, when the Appellate Division, Second Department ruled in <i>159 MP Corp., v Redbridge Bedford, LLC</i> that the “commercial tenants' voluntary and limited waiver of declaratory judgment remedies in their written lease is valid and enforceable, and not violative of New York's public policy …”
<i>Simon v. Starbucks</i>: Preliminary Injunction Granted to Prevent Store Closings
April 01, 2018
While the court will not have the opportunity to rule on the merits of the case, the facts relied upon by the Indiana Superior Court and the conclusions reached in rendering its decision are still instructive for practitioners drafting continuous-use provisions and advising clients on potential breaches or anticipatory breaches of such provisions.
Regulating Interior Landmarks: New York Court Says Duties Don't End
April 01, 2018
What powers does the New York City Landmarks Preservation Commission have to require a building owner to maintain a mechanical clock located in the interior of a building? In <i>Save America's Clocks, Inc. v. City of New York</i>, New York's Appellate Division, First Department, held that the Commission had power to require maintenance of the clock, and to require public access to it.
Case Notes
April 01, 2018
Suit in Second Jurisdiction Is Duplicative<br>Mailing Rent Check While Doing Unauthorized Acts Is Not Mail Fraud
The Basics When Reviewing a Real Estate Tax Provision
March 01, 2018
There are several clauses that rarely find their way into a landlord's initial draft of the lease that may be beneficial to a tenant. In addition, certain real estate tax provisions that are typically included in a landlord's standard lease form need to be carefully reviewed to make sure they are fair to both the landlord and the tenant.
Recreational Marijuana in New Jersey
March 01, 2018
<b><i>Real Estate and Other Issues Will Need Consideration</b></i><p>Given NJ Governor Phil Murphy's campaign pledge to legalize marijuana for recreational use in his first 100 days, the state is on the cusp of a major new revenue stream-recreational marijuana.
What Retailers Can Learn from Recent Bankruptcies
March 01, 2018
Understanding the factors leading up to these bankruptcies, as well as the strategies used by retailers to emerge from bankruptcy, can give retailers significant knowledge about trends in consumer spending and how retailers can improve their overall positions going forward.
Serving Two Masters: When 'Bankruptcy Remote' Meets Public Policy
March 01, 2018
<i><b>How Lenders to BREs Can Reduce the Risk of Debtor Bankruptcy Without Compromising Public Policies</b></i><p>Structured financing transactions, including those pertaining to commercial real estate, make extensive use of entities formed for the specific purpose of reducing the likelihood that assets will be involved in a potential bankruptcy proceeding. Known as “bankruptcy-remote entities,” or “BREs,” these entities are subject to structures and covenants in financing documents and their own formation documents, which are designed to reduce the likelihood that the BRE will file for bankruptcy protection.
Anti-Forfeiture Statute Saves a Debtor's Exercise of Option to Renew Lease
March 01, 2018
In a recent decision, Bankruptcy Judge Christopher S. Sontchi addressed the question of whether a Chapter 11 debtor, the tenant under a commercial lease, could exercise an option to renew the lease during the bankruptcy proceedings, even though the debtor was in default under the lease and the lease specified that it could not be renewed if defaults existed at the time the option was exercised.
