Monday, November 28, 2011

Lease Renewal Notice Provision not to be Strictly Construed

In a recent controversial case in Manhattan, 135 East 57th street v. Daffy's Inc., the Appellate Division ruled that a tenant's failure to provide their landlord with a timely notice that they wished to renew their lease did not foreclose the tenant's ability to renew nonetheless in the face of the landlord's desire to evict.

The Court ruled that regardless of the terms in a lease, equity or fairness could trump the parties agreement. Specifically, the Court stated a test for the tenant to exercise the option even where it failed to notice the landlord pursuant to the terms of the lease. The test is: (1) The landlord was not prejudiced by the delay in notice; (2) The delay was excusable; and (3) The tenant created value (which can only be for the tenant's behalf) in the premises or had made improvements to the premises

This is a scary decision for landlords who rely on the terms of their agreements to make proper business decisions. In the wake of this decision, landlords should assume that a tenant's failure to renew by notice is not grounds to evict. Instead, the landlord must now go the extra step of getting confirmation that the tenant wishes to vacate in order to have a reliable working premises for their property. Basically, the Court puts the burden on the landlord for determining the tenant's intent to not renew regardless of the agreement of the parties. While its always been a residential tenant's world, it appears that the commercial tenant is not falling far behind in default rules in its favor. Landlords beware.

Wednesday, November 23, 2011

A Teaching Law Firm - Pace and the Long Island Education Board

For the past 4 years, Lieb at Law, P.C. has continuously pushed the advantages of a teaching law firm, where attorneys are teaching at a New York State Licensed Real Estate School as they develop their careers. The belief has always been that teaching is the best way to learn and it forces attorney educators to know exactly what is happening on the cutting edge of our field. The model isn't original, but instead it is a replica of the medical model.

It seems law schools are catching on as Pace Law School has just launched a "Legal Residency Program" for entry level attorneys.

While the Pace Law School program is geared towards training new attorneys while they provide low cost legal services to the public, as their public statements represent, the Long Island Education Board, a division of Lieb at Law, P.C., is focused on Lieb at Law, P.C. attorneys becoming teachers themselves to achieve the highest level of client services. Therefore, two different aspects of the medical model are being replicated. Its theorized that a combination of the both; whats done in medical school, will be what ultimately results in the best results.

Congrats to Pace and their innovative approach. Your friends at the Long Island Education Board support this endeavor and will monitor your success. Best of luck.

Monday, November 21, 2011

The Empire has Fallen - Baum to Close

In a remarkable piece of news, foreclosure powerhouse, Steven J. Baum P.C. is closing. They have had a tough month first with their photographs mocking homelessness at their Halloween party to being kicked out of the Fannie / Freddie inner circle. Yet, this is a striking day in the history of the foreclosure crisis. Even the king of foreclosure is now homeless, Steven J. Baum P.C. is no more.

To read a NY Times Article, click here.

Wednesday, November 16, 2011

New York Supreme Court rules Court can continue to sell case information

The New York City Housing Court (“NYCHC”) maintains a database of every matter that passes through its court. “Okay…so what’s the problem with that?” you may ask. Well, a Landlord may obtain this information for a fee from one of the various organizations who purchase this information from the Court. This practice may result in prospective tenants being rejected and/or blacklisted for a housing application due to the Landlord’s perception that the prospective tenant is a “problem tenant” due to the tenant’s name surfacing in a search. However, an attorney has challenged this operation as it paints an incomplete and unfair picture with respect to prospective tenants.

For example, the information obtained does not include a tenant’s reasons behind filing or their ultimate disposition of the case. Meaning, even if the tenants were “in the right” for bringing and/or defending an action, the Landlord is not privy to this information. Instead, the Landlord merely ascertains that the prospective tenant has been a party (it does not even specify whether the tenant brought the action or is defending it) to a NYCHC action and may subsequently unfairly dismiss this tenant as problematic.

As of yesterday, the tenant in Whelan v. Lippman lost the bid to bar the Court System from selling this potentially harmful information to third-party companies by denying the tenant’s motion for a preliminary injunction. The underlying case concerning the “blacklisting” of tenants, however, was not dismissed. We will continue to monitor both the underlying case and any potential appeal of the related case. In the interim, be wary that your potential Landlord may utilize these services when reviewing your application.

Monday, November 14, 2011

Nassau DA faces eviction from Co-Op

The Nassau District Attorney is being evicted from her Co-Op for violating the Co-Op's house rules.

Apparently the Co-Op adopted a new house rule that requires "no new pet without prior approval policy". Well, the District Attorney got a new pet without prior approval. Yet, she thinks she should be able to keep the pet.

The District Attorney appears to be fighting the eviction by saying she only bought the Co-Op because it permitted pets, she wasn't properly notified about the new policy and that by allowing other inhabitants who had a pet prior to the policy to be grandfathered in without prior approval, the rule is improper.

Yet, the District Attorney should realize that when you purchase a Co-Op, you purchase an apartment subject to ever changing rules. If you don't like rules, get a house. While Co-Ops offer ease of living, it does not afford autonomy or privacy. Instead, its communal living with community rules.

Wednesday, November 2, 2011

Can an advertisement describe the property's walkability?

At a recent course entitled "To be Green or not to be Green, that is the question...", an agent suggested that discussing walkability in a listing was a violation of the Fair Housing Act because it discriminates based upon disability.

While I did not believe this to be true as the term walkability is utilized in common parlance to discuss distance, I acknowledged its potential to offend and thereafter decided to check the Department of State's Administrative Hearing Decisions for such a licensing decision. Thereafter, I checked Westlaw for case law decisions on the topic. After an exhaustive search, I found nothing. Does this mean someone can't claim a violation? No. It just means no violation has been recorded concerning the term walkability in an advertisement for property.

As we always teach, opinions are not really relevant, only facts, laws, and prior decisions should dictate our behavior. Therefore, real estate agents are always directed to check prior licensing decisions by clicking here if they have a question about the propriety of their proposed actions.