CRE Insider Blog

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, 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.

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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.

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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.

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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.

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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.

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Topics: cancellation of contracts, sale due to mold

FinCEN Extends Reporting Requirements For Entity Purchases Of High-End Real Estate

By Mike Berey on September 5, 2017



FinCEN has issued Geographic Targeting Orders (“GTOs”) requiring “certain U.S. title insurance companies to identify the natural persons behind companies used to pay ‘all cash’ for high-end residential real estate in New York City, Miami-Dade County Florida, Bexar County, Texas, Broward and Palm Beach Counties in Florida, and Los Angeles, San Diego, San Francisco, San Mateo and Santa Clara Counties in California.

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Topics: FinCEN, georgraphic targeting

Cancellation Of Contract Of Sale Due To Mold Not An Anticipatory Breach

By Mike Berey on August 30, 2017

In a contract for the sale of real property in Southampton, the sellers’ represented that “the Premises is free and clear of any mold or evidence of any existing mold remediation”. The purchasers’ obligation to close depended on the accuracy “as of the date of closing” of the sellers’ representations and warranties, but the sellers were given an opportunity to cure any defects.

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Topics: cancellation of contract

Title To Rents In Borrower Notwithstanding Assignment Of Rents

By Mike Berey on August 14, 2017


The owner of a rental property in Loudonville, New York defaulted on his mortgage. Hermann, the mortgagee, advised that tenants that he was entitled to rents at the property under the assignment of rents provision in the mortgage. The tenants engaged counsel and placed their rents in an escrow account. Hermann commenced a small claims action for the non-payment of rent and the case was transferred to the regular civil part of the Cohoes City Court, in Albany County.

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Topics: rental property