Andrew Lieb advises why and what you should consider when you are negotiating a quaranty on your next commercial lease.
The article was published by the Long Island Business News. HERE is a direct link to download the PDF.
Wednesday, March 03, 2021
If you know that your tenant is engaging in illegal activity at your property, you better do something about it. That's the message from the Federal Appellate Courts in Omega SA v. 375 Canal, LLC.
In the case, a jury awarded $1.1 MM against a landlord for contributory trademark infringement for its willful blindness in identifying potential trademark infringing vendors at its premises where a counterfeit Omega watch was sold. According to the Court, liability follows if the landlord "or its agents had reason to suspect that trademark infringing merchandise was being offered or sold but deliberately failed to investigate or looked the other way to avoid seeing such activity."
To prevail, a plaintiff does NOT need to prove that the landlord "continued to lease space to a specific, identified vendor that it knew or should have known was selling counterfeit [] goods." Instead, the plaintiff only needs to prove that a landlord had "reason to suspect" it's tenant counterfeiting goods "but deliberately failed to investigate or looked the other way to avoid seeing such activity." That is not to say that a landlord has an affirmative duty to police trademarks on its premises, just that it can't ignore them either.
Landlords -
Do you have video surveillance at your property?
Do you have security guards?
Do you accept complaints about your tenants from their customers?
What do you do to protect yourself from criminal tenants leasing space from you?
Tuesday, March 02, 2021
Effective today, all owners, lessees, sub-lessees, or managing agent of housing accommodations are required to provide a reasonable modification and accommodation disclosure form to tenants pursuant to recent amendments to the New York State Human Rights Law.
Specifically, the new law requires the reasonable modification and accommodation disclosure form prescribed by the New York State Division of Human Rights (NYSDHR) be provided within 30 days of the beginning of a tenant’s lease or within 30 days of March 2, 2021 for all current tenants. The disclosure form must also be conspicuously posted on every vacant housing accommodation that is available for rent.
Seems simple enough, right? Apparently not. As of today, the disclosure form has not been published by NYSDHR and so, compliance by real estate professionals is currently impossible. Until NYSDHR prescribes a form, to reduce exposure, all leases should include language notifying tenants and prospective tenants of their right to request reasonable modifications and accommodations if they have a disability under the New York State Human Rights Law.
Specifically, the new law requires the reasonable modification and accommodation disclosure form prescribed by the New York State Division of Human Rights (NYSDHR) be provided within 30 days of the beginning of a tenant’s lease or within 30 days of March 2, 2021 for all current tenants. The disclosure form must also be conspicuously posted on every vacant housing accommodation that is available for rent.
Seems simple enough, right? Apparently not. As of today, the disclosure form has not been published by NYSDHR and so, compliance by real estate professionals is currently impossible. Until NYSDHR prescribes a form, to reduce exposure, all leases should include language notifying tenants and prospective tenants of their right to request reasonable modifications and accommodations if they have a disability under the New York State Human Rights Law.
When selling a home, the contract may require that the home be in broom clean condition at closing.
Broom clean condition is a term often used to describe the condition of a home at the transfer of title (i.e., at closing). But what does it really mean to leave a home in broom clean condition?
In Witter v. Nitschke, the buyers claimed that the property was delivered in “filthy” condition, testifying that they observed hair in the bathrooms, dust and crumbs in the kitchen drawers, and cob webs and a dead fly on a window sill. However, the Court ruled that the premise was broom clean.
As the Court explained, “‘[B]room clean’ does not impose the duty on the seller to have the property professionally cleaned… If the buyers desire to have the property professionally cleaned at delivery of possession to the buyers the buyers need to negotiate a ‘professionally clean’ condition, rather than a ‘broom clean’ condition.”
All broom clean requires is that a home is cleared of all personal items, free of garbage, refuse, trash, and other debris.
Have you ever bought a house that required professional cleaning before you moved in? Are you going to require sellers to deliver it professionally cleaned in the future? Maybe you should.
In Witter v. Nitschke, the buyers claimed that the property was delivered in “filthy” condition, testifying that they observed hair in the bathrooms, dust and crumbs in the kitchen drawers, and cob webs and a dead fly on a window sill. However, the Court ruled that the premise was broom clean.
As the Court explained, “‘[B]room clean’ does not impose the duty on the seller to have the property professionally cleaned… If the buyers desire to have the property professionally cleaned at delivery of possession to the buyers the buyers need to negotiate a ‘professionally clean’ condition, rather than a ‘broom clean’ condition.”
All broom clean requires is that a home is cleared of all personal items, free of garbage, refuse, trash, and other debris.
Have you ever bought a house that required professional cleaning before you moved in? Are you going to require sellers to deliver it professionally cleaned in the future? Maybe you should.
Wednesday, February 24, 2021
Andrew Lieb, Esq will be instructing a ZOOM CLE for Attorneys on April 13, 2021 through the Suffolk County Bar Association.
MCLE Credit: 2 Diversity
Location: Zoom
Program Description: The Fair Housing Act prohibits discrimination because of race, color, national origin, religion, sex, familial status, and handicap (disability). Plus, NYS has even stricter laws that prohibit discrimination in housing.
Did you know, starting on June 20, 2020, all real estate brokers are required to give all transacting parties a Discrimination Disclosure Form detailing their rights and available relief?
This course will uncover and discuss:
- Housing Discrimination 101
- Relevant Laws
- Elements of a Claim/Defense of a Claim
- Damages
- Statutory Penalties
- Top 10 Do’s and Don’ts
Register through the Suffolk Academy of Law: 631.234.5588 or www.scba.org
Tuesday, February 23, 2021
Generally, homeowners are exempt from liability for construction-related injuries that happen in their home.
However, homeowners become liable if they direct or control the method and manner of work.
What does that rule mean to you?
The Appellate Courts, in O'Mara v. Ranalli, just taught us that it is a jury question where there is evidence that the homeowner did the following acts:
- Supplied the ladders used by the contractors;
- Being on site and giving direction nearly every day; and
- Deciding not to permit the installation of stairs from the basement to the first floor in the face of the contractor insisting that it was needed for safer and easier access to the first floor.
If you get called to jury duty on this one, how would you decide? Did the homeowner direct or control the method and manner of work? Should the homeowner be responsible for ensuing injuries?
Friday, February 19, 2021
The NYS Department of Labor is being required by a new law to establish an online database by April 22, 2021 to make available all information and data regarding all workplace fatalities in the construction industry.
Originally, this law stupidly applied to employees rather than workers and contractors, which is the standard for workers in the industry. Now, this has been fixed by new law.
If you are a GC (general contractor) and you don't think that the ambulance chasers have already planned to favorite this website, you have another thing coming. It's time to button-up those safety protocols, meetings, and compliance checks.
What are you doing to protect yourself from suit?
Thursday, February 18, 2021
There has been a long standing dispute in the courts as to whether a family member can be evicted in an eviction proceeding (a/k/a, summary proceeding) or whether a protracted case was required in Supreme Court (a/k/a, ejectment proceeding).
A summary proceeding is considered to be a "simple, expeditious and inexpensive means of regaining possession" of your property. Yes, it can take many months and thousands of dollars, but in contrast to an ejectment proceeding, that is fast and cheap. You can expect an ejectment proceeding to take years and to spend tens of thousands of dollars.
As you can see, whether a family member can be evicted in a traditional eviction proceeding is a big issue that can change the cost / benefit analysis of proceeding with the eviction proceeding in the first place.
The answer to this long standing dispute was just provided by the appellate courts in Aloni v. Oliver when the courts ruled that a family member or romantic partner can be evicted just like everyone else in a traditional summary proceeding.
The only exception to this general rule is that you cannot evict your spouse in a summary proceeding and must resort to an ejectment proceeding, unless there is an existing court decree to the contrary.
Are you ready to evict your family members who are taking advantage of you?
Wednesday, February 17, 2021
Attention Contractors: If you help your client violate the uniform fire prevention and building code and that violation empedes a person's egress from such building during an emergency evacuation (think fire), then, you can be fined up to $7,500 under new law.
This law applies to contractors, architects, subcontractors, construction superintendents, and agents.
Is this fair? Should a contractor have to tell their client no when the client wants something that violates the building code? Are contractors now code enforcement agents?
Tuesday, February 16, 2021
The headlines are in - the federal foreclosure / eviction moratoriums are extended to June 30, 2021 from March. This extension applies to 70% of single family home mortgages.
The subtext is that we have a foreclosure / eviction crisis on the horizon. According to the White House "1 in 5 renters is behind on rent and just over 10 million homeowners are behind on mortgage payments."
If you just use a little deduction, you will quickly realize that almost every block across America is going to see foreclosures and evictions. In the micro, this will result in firesales, which will reduce comparable home prices across the board. In the macro, it will decrease property upkeep and maintenance, which will create a secondary impact on the greater community's desirability and pricing.
That's the bad.
The good is that it's going to be a buyer's market soon.
We need to start thinking about strategies to Purchase Property Post-Pandemic.
What's your strategy?
