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
A Commercial Landlord is Liable for its Tenant's Trademark Infringement - Be Warned
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
New Tenant Disclosure Form on Reasonable Modification and Accommodation Required
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.
RE Closings: “Filthy” Condition is Broom Clean?
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
Upcoming CLE: Do's and Don'ts of Housing Discrimination in Rentals (Registration Info for Attorneys)
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
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