CRE Insider Blog

Contract Held Not Illusory Or Unenforceable

By Mike Berey on May 3, 2018


The purchase agreement between the Plaintiffs and the Defendant-Sponsor required the Defendant to set a closing date concurrently with or after certificates of occupancy were obtained for the building or the condominium unit intended to be acquired by the Purchaser. The agreement obligated the Defendant to use its best efforts to procure the certificates of occupancy within two years of the issuance of a temporary certificate of occupancy. When the agreement was entered into, the building was under construction. The Plaintiffs sought a return of their down-payment, alleging that the purchase agreement was void, illusory or unenforceable.

Read More

Topics: contracts

Easement Abandoned

By Mike Berey on April 4, 2018


The common owner of adjoining parcels of land in Saratoga Springs conveyed one of those parcels, reserving “an easement or right-of way for ingress and egress from Green Street [across the property conveyed] to the garage and woodshed” located in the rear of the parcel that was retained. The Plaintiff, a successor owner of the benefitted property, commenced an Action against the successor owner of the burdened property, seeking a declaratory judgment that the Defendant’s property was burdened by the easement, and an Order directing the Defendant to remove any obstructions interfering with his use of the easement. The Plaintiff alternatively claimed that he acquired an easement by prescription. The Defendant counterclaimed, seeking a declaration that the property was unencumbered by an easement. The Defendant argued that the easement was extinguished; the purpose of the easement no longer existed and the easement had not been used for its intended purpose for more than fifty years.

Read More

Topics: easement

Contract Vendee In New York Has An Equitable Lien

By Mike Berey on March 22, 2018


Property was sold to Webber Enterprises, Inc. (“Webber”), subject to a judgment docketed against its seller. Weber executed a first mortgage to the Plaintiff’s predecessor in title. The Plaintiff then entered into an agreement with Defendants Mario and Nicole Curcio (“the Curcios”) to construct a home on the property for them. On and before December 3, 2013, the Curcios deposited $20,000 with Webber and were credited $9,661 for plumbing work they had paid for prior to December 5, 2013. Webber executed to the Plaintiff a second mortgage on December 20, 2013 and a third mortgage in 2014. The Curcios sought a ruling holding that they held an equitable lien prior in right to the liens of the second and third mortgages.

Read More

1031 Exchanges And Mineral Rights

By First American NCS on March 14, 2018

If you are thinking about diversifying your portfolio by trading out of real estate investments and into mineral rights, you’ll need to determine whether the mineral right is exchangeable and whether it is like kind to the real estate you plan to sell.  Because this is a complicated field, we recommend you talk to your tax adviser, but this article can give you an introduction into the topic.

Read More

Topics: 1031 Exchange

Application Of Step-Transaction Doctrine To New York City Transfer Tax Upheld

By Mike Berey on January 18, 2018



GKK2 Herald LLC (“GKK2”) and SLG LLC (“SLG”), the owners, respectively, of 45% and 55% tenant-in-common interests in real property located at 2 Herald Square in Manhattan, transferred their interests to 2 Herald Owner LLC (“Herald LLC”). GKK2 received a 45% member interest in Herald LLC and SLG received a 55% interest in Herald LLC.

Read More

Topics: New York, real estate taxes

Foreclosure Of Common Charge Lien Is Limited To Recovery Of Unpaid Common Charges

By Mike Berey on December 21, 2017


The Plaintiff Board of Managers commenced an Action to foreclose its recorded common charge lien for unpaid common charges in the amount of $16,488.36, accrued interest and attorneys’ fees. During the pendency of the Action, the Defendants paid the common charges and interest. The Plaintiff contended that the lien remained unsatisfied because the Defendants still owed $194,598.23 for repair fees, fines for allegedly violating rules of the Condominium, and for attorneys’ fees, some of which related to a different, unrelated lawsuit. The Supreme Court, New York County, held that the Defendants had satisfied the lien and granted the Defendants’ motion for summary judgment dismissing the causes of action to foreclose the common charge lien and for breach of contract.

Read More

Topics: foreclosures

Conveyance Of Mineral Rights Includes Rights To Sand And Gravel

By Mike Berey on November 28, 2017


A 1917 deed conveyed “all minerals in, under and upon” the property being deeded, together with the rights to “dig, mine and remove” those minerals from the land. The Appellate Division, Third Department, concurring with the ruling of the Supreme Court, Clinton County, held that the mineral rights owned by the Plaintiff included the right to extract and remove sand and gravel. The Appellate Division, quoting the Court of Appeals’ decision in White v. Miller, concurred.

Read More

Topics: mineral rights, land rights

City Can Assert Adverse Possession When It Collected Real Estate Taxes

By Mike Berey on October 26, 2017


The Plaintiff, whose predecessors-in-interest purchased the land in question in 1948, sought a ruling declaring that it was the sole owner of the property.

Read More

Topics: real estate taxes

Building May Be Constructed Above Party Wall To The Center Line Of Party Wall

By Mike Berey on October 10, 2017


Plaintiff, the owner of a five-story residential building directly adjacent to the Defendant’s newly constructed fourteen-story building, claimed that the easterly exterior wall of the Defendant’s building cantilevered over the Plaintiff’s building and prevented Plaintiff from extending an existing party wall to add additional floors to the Plaintiff’s building.

Read More

Topics: party wall

Dissolved Corporation’s Sale Does Not Require Shareholder Consent

By Mike Berey on September 20, 2017


Make Realty Corporation (“Make Realty”), a New York corporation, was dissolved by proclamation in 1994 and not reinstated. The Plaintiff alleged that in 2013 Make Realty entered into a contract to sell property in Brooklyn to the Plaintiff and a right of first refusal agreement with the Plaintiff for two adjacent properties. The corporate secretary of Make Realty executed the agreements. The Plaintiff alleged that Make Realty breached the contract by failing to convey the property. The Supreme Court, Kings County, granted Make Realty’s motion for summary judgment.

Read More

Topics: cancellation of contracts, sale due to mold