CRE Insider Blog

The New Economy And Commercial Real Estate: Short-Term Gains,  Long-Term Questions?

By Linda J. Isaacson on July 10, 2018

The good times for investors in U.S. commercial real estate continues, as the national economy is going through a rapid metamorphosis thanks to recent legislation and trade reforms. Over the long term, however, other trends may have significant impacts on individual sectors.

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Topics: Commercial Real Estate

Damages Awarded Under The Visual Artists Rights Act Of 1990 (“VARA”) When Developer Destroyed Art On Building Walls

By Mike Berey on June 7, 2018


Plaintiffs, 21 aerosol artists, sought a preliminary injunction preventing a real estate developer and four
of his companies from demolishing warehouse buildings in Long Island City, Queens County, on the
walls of which the Plaintiffs had painted works of art. The United States District Court for the Eastern
District of New York denied a preliminary injunction but, before a written opinion was issued, the
paintings were whitewashed over.
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Topics: Visual Artist Act

Deed-in-Lieu Of Foreclosure Held An Equitable Mortgage Reversed On Appeal

By Mike Berey on May 23, 2018


Under Real Property Law (“RPL”) Section 320 (“Certain deeds deemed mortgages”), “[a] deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage…” In In Re The First Union Baptist Church of the Bronx, the United States District Court for the Southern District of New York reversed a decision of a Bankruptcy Court Judge, reported at 572 B.R. 79 and at 2017 Bankr. LEXIS 2189, holding that a deed in lieu of foreclosure, recorded pursuant to the terms of a negotiated settlement agreement (the “Agreement”) approved by a different Bankruptcy Court Judge since then retired, violated Section 320, was an impermissible penalty, and was therefore void.

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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.

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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.

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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.

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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.

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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.

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Topics: New York, 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.

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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.

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Topics: Mineral Rights, Land Rights