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Nevada Supreme Court adds New Elements to Constructive Eviction Claims

Nevada, like many jurisdictions, has recognized the ability of a tenant to vacate property if it becomes unfit for occupancy for the purpose for which it was leased. This is commonly known as a “constructive eviction.” ...more

New York District Court Holds Lessee Not Liable Under CERCLA as an Owner

A New York federal district court recently held that a lessee will not be found liable under CERCLA as an owner where the lessee does not possess sufficient indicia of ownership. (Next Millennium Realty, LLC v. Adchem Corp.,...more

As the Snowfall Comes to an End, Buffalo, New York Area Businesses Should Seek To Protect Their Insurance Rights

The Buffalo, New York, area has been devastated with record-setting levels of snowfall. In just a few days, the area has received a year’s worth of snow, with more than seven feet in some places. The heavy snow has led to...more

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with...more

Insurance Alert: Insurer Delay Extends Time to Repair or Replace Damaged Property

In Stephens & Stephens XII v. Fireman's Fund Ins. (No. A135938, filed November 24, 2014), the plaintiffs obtained property insurance on a warehouse. Within a month, it was discovered to be stripped of all wiring and metal....more

Recent Changes to the Mechanics’ Law

Mechanics’ Lien - • An In Rem lien (against real property). • For the payment of all debts due by an owner to a contractor (or by a contractor to his subcontractors) for Labor or Materials furnished....more

Lease Incentive Claw Backs Found to be a Penalty

Lease incentives given by landlords to induce tenants to enter leases are a very common feature of the property landscape in Australia. These usually take the form of fit out contributions or rent abatements (or a combination...more

Policy’s “Named Storm” Deductible Applies To New Jersey Superstorm Sandy Claim

In Wakefern Food Corp. v. Lexington Insurance Company, No. MID-L-6483-13 (N.J. Super. Ct. Law Div. filed Oct. 29, 2014), the Superior Court of New Jersey held in favor of Lexington Insurance Company in connection with a $50...more

Public Projects and Business Losses – Who Gets What and When?

Most of us have been inconvenienced by road construction or other public works. Streets can be more congested, exits closed, and traffic re-routed, making it more difficult to get to the restaurants, yogurt shops, book...more

CMBS Issuer wins negligence claim against valuer in English High Court

In a judgement of major significance for the commercial mortgage backed securities (CMBS) market, the High Court has ordered a negligent valuer to pay €32 million damages to a CMBS issuer. This is the first time a...more

Bankruptcy Court Finds Tenant Cannot Assume Commercial Lease After Waiving Rights to Seek Relief From Forfeiture Under California...

The US Bankruptcy Court for the Central District of California (the "Court") recently upheld the validity of a commercial lease provision by which a debtor/tenant waived its rights to seek relief from forfeiture (i.e.,...more

B.C. Surface Rights Board Reduces Rent Payable After Landowners Fail to Prove Loss

In the recent decision of the B.C. Surface Rights Board in Encana Corporation v Perry Burl Piper and Leslie Lancelot Dowd, the Board awarded compensation to landowners less than the amount previously offered by the operator. ...more

Mechanics Lien Subordination: Illinois Further Limits Construction Lenders’ Ability To Ensure Priority Against Mechanics Liens

On July 16, 2014, Illinois enacted Public Act 98-764 (Senate Bill 3023) (“SB 3023”), which amends the Illinois Mechanics Lien Act (770 ILCS 60/ et seq.) (the “Act”) to prohibit subordination of mechanics liens on Illinois...more

Fourth Circuit: Twenty-Seven Days of Inaction Enough to Waive Right to Rescind for Violations of Protective Safeguards Clause

The marriage liturgy in the Anglican Book of Common Prayer contains the well-known line “speak now or forever hold your peace,” and the take-away from a recent Fourth Circuit decision out of North Carolina is clearly “act now...more

Lease Termination: Do You Really Mean It?

A commercial landlord sought relief from the automatic stay so that it could complete prepetition eviction proceedings against the debtor. The debtor objected, arguing that it had a right to assume the lease. The case turned...more

Some Days, A Stay Is Easier to Obtain Than Others

In A&F Enterprises v. IHOP Franchising LLC, 742 F.3d 764 (Seventh Cir. 2014), Chapter 11 debtors appealed a determination that their building leases were deemed rejected because they were not timely assumed. Both the...more

Environmental Alert: "Clearly Allocate Risk of Change Interpretations in Transactions"

When buyers request that sellers warrant compliance with environmental law, sellers need to appreciate that agency interpretation or agency enforcement discretion may have played a role in the seller’s apparent ongoing...more

Keeping the Benefit of Your Bargain: Strengthening Your Right to Prepayment Premiums

Anyone involved in commercial lending transactions is familiar with provisions of loan agreements that provide for compensation to the lender in the event the indebtedness is paid in advance of the contemplated due date....more

Delaware Bankruptcy Court Faces Split Among the Courts Concerning Scope of a Landlord’s Claim Against a Tenant in Bankruptcy

The Delaware bankruptcy court will soon be forced to rule on the scope of a landlord's claim in bankruptcy, an issue on which courts around the country have been split for many years. In the case of In re Masonite Corp. (Case...more

North Dakota Supreme Court Establishes Defense to “No Damage for Delay” Clause

In June 2014, the North Dakota Supreme Court issued its decision in C&C Plumbing & Heating, LLP v. Williams County et al, No. 20130297. The Court articulated a new defense to the application of a “no damage for delay” clause....more

Donald Trump Sanctioned for Failure to Disclose Insurance Policy In Ft. Lauderdale Condo-Hotel Case

Last week, Judge Kathleen Williams of the U.S. District Court for the Southern District of Florida granted plaintiffs’ motion for sanctions against Donald Trump for his initial failure to disclose a relevant insurance policy...more

California Court: An Insurance Claim for Feng Shui Is Not Harmonious Qi

Feng shui is a Chinese philosophical system that supposedly orients buildings and their contents in an auspicious manner. Last month in Patel v. American Economy Ins. Co., — F.Supp.2d —, 2014 WL 1862211 (N.D. Cal., May 8,...more

The Washington Court of Appeals Strengthens the Ability of Lenders to Obtain Summary Judgment Against Commercial Guarantors on...

Post-foreclosure deficiency lawsuits against guarantors of commercial loans can be expensive and time consuming — particularly when measured against the sometimes uncertain collectability of the deficiency judgment. Under...more

Insurance and Reinsurance Update: Re-reading the Riot Act (again): Police liable for consequential losses under the Riot (Damages)...

As if a lecture at the Police Federation Conference from the Home Secretary wasn't enough, the police have also this week received the Court of Appeal's reading of the riot act. In a decision that opens the door for insurers...more

Grave decisions for Cemetery Association and Office Building Owner; Tax Court rejects two petitions to enjoin collection of...

A longstanding exemption is denied. In Washington Park Cemetery Association, Inc. v. Marion County Assess et al., Cause No. 49T10-1404-TA-10, the non-profit Association owned a cemetery, mausoleum and crematory complex in...more

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