General Business Commercial Real Estate Civil Remedies

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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

Money Back - Guaranteed? Part II - No Implied Term In Tenant Break Option

The Court of Appeal has overturned a decision of the High Court which implied a term into a lease by which a tenant could recoup "overpaid" sums after exercising its break option. The High Court's original decision did...more

Unmitigated Waivers: Guarantors Remain Liable Despite 4-Year Delay in Foreclosure Sale

If a lender delays foreclosure allowing years of default interest to accrue such that a guarantor’s obligation increases from $6 million to $12 million, should the guarantor remain on the hook for the full $12 million? In...more

Prepetition Default Interest — Take Nothing For Granted

The case is In Re Shree Mahalaxmi Inc., 503 B.R. 794 (Bankr. W.D. Tex. 2014). After a mortgage lender learned of a prepetition default during a bankruptcy, it filed an amendment to its proof of claim to add prepetition...more

Interrupted by Sandy

In Johnson Gallagher Magliery, LLC v. The Charter Oak Fire Insurance Company, 2014 WL 1041831 (S.D.N.Y. Mar. 18, 2014), the United States District Court for the Southern District of New York, granting a motion for partial...more

Shopping Plazas, Anchor Tenants & Non-Competes – A Decision from the 11th Circuit

This is not your standard non-compete case: Just days ago, the Eleventh Circuit handed down its opinion in an extremely complex dispute related to shopping plazas, anchor tenants and restrictive covenants....more

Landlords Welcome Landmark Decision In Re Game Station

LONDON - The Court of Appeal in the case of Re Game Station has held that rent payable by a tenant that enters administration is a priority expense of the administration while the leasehold premises are being used for the...more

Fear Alone Won’t Get You An Injunction

With apologies for being absent for a week, ponder this question when you embark on a fight with the officers and directors of the energy company you own a part of: How does your subjective fear of harm factor into your right...more

Indiana Court of Appeals Once More Asked to Interpret AIA Standard Construction Contract

This week's discussion focuses on the interpretation of the American Institute of Architects (AIA) standard construction contract by the Indiana Court of Appeals in the recent case Allen County Public Library v. Shambaugh &...more

CAUSE FOR DISTRESS? The remedy of distress is being abolished from 6 April 2014

WHAT IS DISTRESS? Levying Distress means "sending in the bailiffs" to seize a tenant's goods in order to recover arrears of rent. It allows a Landlord to take possession of the tenant's goods on the let premises and...more

When Inverse Condemnation and Eminent Domain Overlap: Owners Beware of Attorney Contingency Fee Arrangements

Property owners are routinely hiring attorneys well in advance of a public agency's filing of an eminent domain action. Many times, the representation begins before it is even certain whether the agency will actually move...more

Insureds Must Exhaust Coverage From Solvent Insurers

On September 24, 2013, the New Jersey Supreme Court ruled that policyholders must look to its solvent insurers before seeking benefits from the New Jersey Property-Liability Insurance Guaranty Association (“Guaranty...more

Client Alert: The Arizona Court of Appeals Holds the Right to a Fair Market Value Hearing Cannot be Waived in a Deficiency Action

In CSA 13-101 Loop, LLC v. Loop l01, LLC, et al., Loop 101 borrowed $15.6 million from MidFirst (which later assigned its rights under the loan to CSA as an intercompany transfer) to build a commercial office building. The...more

Under Construction - September 2013: Arizona Court to Architect: You Have One Less Payment Tool than Your Contractor Counterparts

Architects occasionally get into payment disputes with project owners in much the same way as general contractors do. When that relationship sours, and litigation becomes necessary to secure payment, architects and...more

What Is Preliminary Relief in CA?

Plaintiffs are often confronted with the dilemma of prolonged litigation vis-a-vis losing their business to trademark infringement, competition, etc. Preliminary relief in some instances, along with other litigation tactics,...more

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