Category Archives: Real Estate

Treatise Update: Friedman and Smith on Contracts and Conveyances of Real Property

The Business Lawyer calls this PLI title “The ‘bible’ for any lawyer handling a real estate conveyance.” providing more than 140 sample forms, sample forms, sample clauses, and checklists that simplify and accelerate transactions, Friedman and Smith helps readers to carefully consider all the issues and options before finalizing a contract. This definitive resource gives guidance on how to handle unexpected problems and contingencies before they become deal-breakers; factor in a relevant case law when structuring sound agreements; and avoid drafting ambiguous or incomplete contracts that can lead to delays and aborted deals.

Highlights of this latest update of Friedman and Smith on Contracts and Conveyances of Real Property include:

Chapter 3, Assignments of Contracts. New discussion covers the rights of an assignee against the seller if the seller fails to perform a promise to the buyer included in the contract of sale (see section 3:2.4).
Chapter 14, Marketable Title. New discussion of Loring v. Whitney, 46 N.E. 57 (Mass. 1987), which illustrates how courts deal with drawing the line between litigation risk that is substantial versus too remote (see section 14:1.2).
Chapter 19, Easements—Creation. New discussion of the distinctions between easements appurtenant and easements in gross, including court-developed tests in cases of ambiguity (see section 19:3).
Chapter 22, Covenants—Scope and Termination. New discussion of eminent domain reviews the majority and minority views on whether restrictive covenants are property for takings purposes (see section 22:2.12).
Chapter 24, Contract Remedies for Seller Default. New discussions cover challenges to specific performance as a workable remedy for the buyer when the seller has problems with the title (see section 24:44.2), and review the viability of specific performance as a remedy for part of a contract and not for the remainder because the remainder is impossible to perform or the matter is one into which equity will not venture (see section 24:4.3).
Chapter 25, Time for Performance. Updated discussion of the “time of the essence” doctrine, including “time is of the essence” as an implied term and the consequences when time is essential and when time is not essential (see sections 25:2.1-25:2.4).
Chapter 26, Deed Elements. Updated discussion covers transfer tax, which is payable upon the recordation of a deed, triggering a requirement that the grantee report the amount of consideration to the reocording office that becomes part of the public record, which allows a title searcher to determine the parties’ reported consideration (see section 26:4).

This essential treatise is available on PLI PLUS. If you would like to purchase a print copy, please email libraryrelations@pli.edu.

New Edition! Net Leases and Sale-Leasebacks

Net Leases and Sale – Leasebacks: A Guide to Legal, Tax and Accounting Strategies covers every aspect of the ownership, financing, documentation, taxation, and accounting for net leases and sale-leasebacks, focusing on those areas where the treatment of net leases and sale-leasebacks differs from the treatment of other forms of real estate investment.

Authored by specialist Ken Miller, this softbound guide, which assumes some basic understanding of the law and practice of real estate acquisitions, provides a detailed discussion of the important concepts underlying real estate investment transactions, as well as a clause-by-clause explanation of the mandatory and optional provisions of a net lease investment agreement.

This treatise title is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Treatise Update: Friedman on Leases

Friedman on Leases is widely regarded as the leading authority on commercial real estate leasing, recognized for its unsurpassed comprehensive and practical instruction, as well as its extensive and balanced coverage of the full range of tenant and landlord concerns. The updated Friedman on Leases, Sixth Edition continues to deliver not only the foundational knowledge required by novice practitioners, but also analysis of and insight into the most current and relevant developments facing seasoned practitioners in the commercial real estate field.

Highlights of this Release #6 include the following:

Sample Provisions; Determination of Cancellation Fee. New sample provision to determine the Cancellation Fee. (See Chapter 22. Option to Cancel Lease section 22:5.5)

Case Developments. Includes the latest developments in the following areas:

Interruption of Services. If a tenant can establish that the interruption of services has caused a constructive eviction of tenant, most courts have allowed tenants to plead constructive eviction as a defense to a non-payment of rent action (see Chapter 12. Landlord’s Services section 12:2);

Tenant’s Retention of Possession After End of Lease: Liability for Damages. A tenant may be found to have retained constructive possession of the premises, giving rise to a holdover tenancy, by failing to remove fixtures or improvements as required to restore the premises (see Chapter 18. Termination of Lease section 18:2);

Effect of Bankruptcy on Landlord’s Remedies for Default; Claims for Damages. In finding that the damages cap in section 502(b)(6) does not apply to damages for waste, trespass, or nuisance, the Ninth Circuit Court of Appeals proposed a test to resolve the question of application of the cap, which test has been adapted by some jurisdictions (see Chapter 20. Tenant Bankruptcy section 20:6.3); and

Mechanics’ Lien. The New York Court of Appeals held that consent for purposes of the Lien Law can be inferred from lease terms, and no express consent or privity between landlord and contractor is required (see Chapter 23. Alterations and Improvements by Tenant section 23:9).

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

New Edition! Legal Guide to the Business of Marijuana

Legal Guide to the Business of Marijuana is a unique resource for lawyers who represent clients in what has been called the fastest growing industry in the United States. Many states now allow medical and/or recreational use of marijuana, but it remains illegal under the federal Controlled Substances Act. As a result, marijuana enterprises must operate in a legal and regulatory environment of uncertainty and rapid change, and lawyers representing these enterprises must tread carefully when advising clients.

Written by James T. O’Reilly, a lawyer and public health specialist, Legal Guide to the Business of Marijuana offers critical guidance to help lawyers effectively represent their clients while steering clear of seen and as yet unseen perils implicit in the continued federal-state conflict. Highlights of the 2019 Edition include:

Discussion and summary of the new laws in Michigan, Missouri, Oklahoma and Utah, the latest states to enact some form of legalization.
Coverage of the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”), which legalized production of hemp nationwide while also retaining the regulatory power of the FDA over CBD products derived from hemp.
Updated state-by-state Appendix of cannabis-related statutes, regulation, and court cases

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Practice Area Webinars – Law School Summer Schedule

Sign up today for PLI’s monthly webinar series on PLI PLUS for law school librarians. Each monthly webinar will cover a different practice area; while also demonstrating the overall functionality of the research database.

These webinars are meant to be a convenient way to learn more about PLI content in an area of the law. Each webinar will start with an overview of relevant PLI resources to be followed by research scenarios. Attendees are welcome to submit their own research questions and scenarios up to one week prior to the webinar.

If you are interested in participating, please send an RSVP to PLUS@pli.edu.

Upcoming webinars:

MAY: Wednesday, May 29, 2019, 2:00pm ET: Immigration Law

JUNE: Wednesday, June 26, 2019, 2:00pm ET: Real Estate Law

JULY: Wednesday, July 31, 2019, 2:00pm ET: Tax Law

AUGUST: Wednesday, August 28, 2019, 2:00pm ET Corporate Law

Updated Treatise: Holtzchue on Real Estate Contracts and Closings

Holtzchue on Real Estate Contracts and Closings: A Step-by-Step Guide to Buying and Selling Real Estate (Third Edition) provides thorough legal, technical, strategic guidance to help implement dispute-free residential and commercial deals more quickly and easily. Featuring checklists, highlighted practice tips, and dozens of useful forms, this treatise is a valuable step-by-step “how to” guide that ensures practitioners can successfully prepare for a sale or purchase of real estate.

Release #21 includes new and updated cases and other authority throughout the text, including in the following important areas:

Attorney Malpractice: New section collects malpractice cases (see Front Matter at “Ethics and Professional Responsibility,” section [10]).
Purchase Money Note and Mortgage: Recent cases on installment land sale contracts (see section 2:2.5[B]).
Acceptable Title and Title Insurance: Where the N.Y. Appellate Division reversed annulment of Insurance Regulation 208, which prohibited title insurance corporations and title agents from providing any marketing payments or entertainments to attorneys, but affirmed annulment of regulations on closer fees and ancillary fee caps.
Closing Date and Place: Recent cases where the contract expressly states that time is of the essence (see section 2:2.9).
Condition of Premises and Caveat Emptor: Recent cases on affirmative representation on mold and Property Condition Disclosure Statement regarding water damage (see section 2:2.11[A][2]).
Remedies for Breach or Failure to Close: Recent cases on breaches by seller and specific performance (see section 2:2.17[A],[A][3]).
NYSBA Ethics Opinions: NYSBA Ethics Opinion 1161, opining that when a lawyer prepares a contract of sale, the lawyer may not disclose the contract to the broker who requested a copy without the client’s informed consent (see section 1:1.2).

This treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Updated Treatise! Friedman on Leases (Sixth Edition)

Friedman on Leases is widely regarded as the leading authority on commercial real estate leasing, recognized for its extensive and balanced coverage of tenant and landlord concerns. This fifth release of Friedman on Leases, Sixth Edition continues to deliver not only the foundational knowledge required by novice practitioners, but also analysis of and insight into the most current and relevant developments facing seasoned practitioners in the commercial real estate field.

The author, Andrew R. Berman, is Senior Vice-President and Associate General Counsel with Savills Studley in New York. He is a former real estate partner at Orrick Herrington, Akerman, and Sidley Austin, and is a law professor at New York Law School, where he founded the Center for Real Estate Studies and the Institute for In-House Counsel. Mr. Berman’s expertise in both practice and academia enable him to provide the broad perspective and insight that real estate professionals need in this rigorous and dynamic field.

Highlights of Release #5 include the following:

Fiduciary Capacity; Authority. Updated discussion reviews how Illinois, New York, and Pennsylvania approach a landlord-trustee’s power to lease in the absence of a special power. (See section 2:1.2.)
Taxes, Assessments. Updated discussion covers when a lease requires the tenant to pay the landlord additional rent based on future increases in real estate taxes. (See section 5:2.1.)
Amount of Percentage Rent. Updated with new examples that illustrate the different approaches to determine percentage rent, as well as a new sample percentage rent provision with percentages that vary and a cap. (See section 6:2.)
Holdover Tenant Versus Foreclosing Mortgagee. Updated to include cases that illustrate the uncertainty over whether an attornment provision affirms that privity of estate exists between the tenant and the purchaser, or whether it extends liability by way of privity of contract. (See section 8:3.)

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please email libraryrelations@pli.edu.

Commercial Ground Leases: Now in its 30th Year!

Since the publication of its first edition in 1988, Commercial Ground Leases has been helping real estate professionals draft, negotiate, and finalize equitable, error-free commercial ground lease documents that address the needs of both landlord and tenant, providing clear explanations of complex issues in a framework that makes each individual subject easy to find. This one-stop volume also includes several valuable appendices that offer time-saving sample agreement language.

Commercial Ground Leases covers all the critical areas that participants in a commercial real estate development project need to know about in order to resolve any ground lease issues that may arise.

Recent updates to the third edition include:

–Chapter 4, Tenant Financing: General Updated section 4:5.3 reviews the risks posed by leasehold mortgages to the landowner.

–Chapter 6, Leasehold Financing A new section, 6:7.1[G], reviews the inclusion in the ground lease and in leasehold mortgage documents of a waiver by the ground lease tenant/borrower of any rights to a claim for damages against either the landowner or any leasehold mortgagee arising from any new lease into which they may enter.

–Chapter 7, Bankruptcy Updated section 7:3.2[C] reviews stub rent and whether the past due rent for the entire month is treated as unpaid pre-petition rent or if the portion of the rent attributable to the period after the filing date to the next rent due date is includible as a priority administrative expense.

This title is available on PLI PLUS, our research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Treatise Update! Friedman on Leases

PLI recently updated Friedman on Leases (Sixth Edition). This acclaimed treatise clarifies and analyzes the full range of lease provisions and conceivable landlord-tenant situations to give you unsurpassed practical instruction on how to negotiate and draft airtight agreements that protect your clients’ rights and minimize their liability exposure.

This definitive work continues to deliver not only the foundational knowledge required by novice practitioners, but also analysis of and insight into the most current and relevant developments facing
seasoned practitioners in the commercial real estate field.

Highlights of this Release #3 include the following:

- Disclaimer of Waiver by Landlord: Updated discussion examines
  whether a nonwaiver provision may be waived.
- Security Deposit Clause: New samples of a lease provision that requires
  tenant to deposit cash as security; a lease provision that requires
  tenant to deposit a letter of credit as security; a lease provision that permits
  tenant to deposit either cash or a letter of credit as security; a lease
  provision that permits the security deposit to be reduced if certain conditions
  are satisfied; and a form of a letter of credit to be attached as an
  exhibit to a commercial lease.
- Option to Cancel Lease—Sample Provisions: New samples of negotiated
  provisions granting tenant the one-time right to cancel.
- Stipulations: Instead of a stipulation that permits tenant to remove
  its installations, an alternative approach is for the parties to define in the
  lease what constitutes “Tenant’s Property,” and that the tenant has the
  right (and/or the obligation) to remove its property. A new sample provision
  of this type is provided.

This essential title is available on PLI PLUS, our online research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

New Title! Legal Guide to the Business of Marijuana

PLI recently published a new title, Legal Guide to the Business of Marijuana.

This title is a new and unique resource for lawyers who represent clients in what has been called the fastest growing industry in the United States. The majority of states have enacted laws legalizing medical marijuana — with nine states to date allowing for recreational use — but marijuana remains illegal under the Federal Controlled Substances Act, giving rise to constitutional challenges to these state laws under the doctrine of preemption. As a result, marijuana enterprises must operate in a legal and regulatory environment of uncertainty, and lawyers representing these enterprises must tread carefully when advising clients.

• the complex and varying state regulation of medical and non-medical marijuana, including a survey of state cannabis laws, with summaries and citations

• federal law, enforcement, and preemption

• the various aspects of establishing and managing a marijuana enterprise, including the growing, licensing, labeling, transporting, and distribution of marijuana and related products

• the implications of preemption on employment, taxes, and banking

For lawyers new to representing marijuana clients, the author provides an understanding of the definitions of marijuana and other cannabis products, as well as a review of the policy and political issues that have led to the controversy and uncertainty of the current environment.

This essential new title is available on PLI PLUS, our online research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.