Commercial Real Estate › Civil Remedies › Civil Procedure

Rogers Towers: Garnishing Professional Fees After Close of Bankruptcy Proceeding

It is not an uncommon practice for commercial lenders or real estate owners to employ a broker to assist with the sale of property for a commission. Recently, a corporation owning a marina in South Florida filed for Chapter...more

Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, No. 437, 2012 (Del. May 9, 2013)

In this en banc opinion, the Delaware Supreme Court affirmed the Court of Chancery’s reformation of three real estate joint venture agreements, based on unilateral mistake by one joint venture party and knowing silence by the...more

Temporary Regulatory Takings Do Exist in California!

Given the maze of procedural and substantive hurdles involved, property owners rarely succeed with regulatory takings claims. Even when owners do win, it is yet more uncommon for courts to award damages, instead allowing the...more

Court Adheres to Specific Definition of “Designated Premises”; Holds Policy Cancellation Does Not Preclude Rescission

In Seneca Ins. Co. v. Cimran Co., — N.Y.S.2d –, 2013 WL 1405231 (App. Div. 1st Dep’t 2013), the New York appeals court granted the insurer’s motion for summary judgment, declaring that it had no duty to defend and indemnify...more

Ninth Circuit Holds Takings Case Must Proceed Through Tribal Court

An eminent decision out of the Ninth Circuit United States Court of Appeals is not a common occurrence. A Ninth Circuit eminent domain decision dealing with intangible property is even less common. Yet, on April 26, 2013,...more

Ace in the Hole: NY Court Gives Hotel Owner New Way to Oust Hotel Manager and (Re)Claim Management of the Property

A recent decision of the New York state appellate court has given hotel owners a new way to override contract provisions in long-term property management agreements and oust hotel managers from managing the property. In...more

Legislative Amendment to California's Loss of Business Goodwill Statute?

California's loss of business goodwill statute, Code of Civil Procedure section 1263.510, provides that before a business can submit its goodwill claim to a jury in an eminent domain case, the business must first demonstrate...more

Arizona Court of Appeals Renders Two Decisions Affecting Awards of Attorneys’ Fees in Lawsuits to Enforce Mechanics’ Liens

This past month, the Arizona Court of Appeals issued two decisions that could have significant implications for mechanics’ lien claimants....more

Ontario Court Rejects Damage Recovery in Contamination Claim, Adopting a Strict Analysis That May Hinder Future Claims

In Midwest v. Thordarson (Midwest) 2013 ONSC 775, the Ontario Superior Court of Justice dismissed a property owner’s claim for damages for remediation costs stemming from the alleged migration of contaminants from a...more

Follow Up on IRWA/Appraisal Institute "2012 Eminent Domain Year in Review" Presentation

For those of you who attended the joint meeting today between Chapter 1 of the International Right of Way Association and the Appraisal Institute, we promised to post a cheat sheet that reminds you about the cases associated...more

California Supreme Court Rules Unions May Picket On Private Property

Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, S185544 (December 27, 2012): The California Supreme Court recently held that although a supermarket’s privately owned entrance area is not a public...more

Although Unlikely to be Immediately Adopted Elsewhere, A Recent Tennessee Decision Regarding an Owner’s Liquidated Damage Claim...

A Tennessee Court of Appeals recently held that liquidated damages under an AIA Contract (A201 -1997 Gen. Conditions) are neither automatic nor self-executing. RCR Building Corp. v Pinnacle Hospitality Partners, 2012 WL...more

Eminent Domain Opinions Focus On 'Just Compensation'

Originally Published in Daily Journal, January 4, 2013 It has been quite a busy year for takings cases, and the state Court of Appeal provided one last published eminent domain opinion just before 2012 came to a close....more

CERCLA Cost Recovery or Contribution Claim: Another Judicial Misstep

The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit. In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent...more

New N.C. Lien Laws Take Effect Next Week. Is Your Company Ready?

The North Carolina construction world was abuzz during 2012 about new legislation bringing significant changes to North Carolina’s mechanic’s lien and payment bond laws. Governor Perdue signed SB 42 and HB 1052 into law this...more

Repeated Seasonal Flooding Of Forest Land Authorized By Government May Qualify As A Taking of Property

The U.S. Army Corps of Engineers authorized repeated seasonal flooding that damaged trees on forest land owned by the Arkansas Game and Fish Commission. The question before the United States Supreme Court was “whether a...more

Prevailing Property Owners May Recover Attorney Fees After Defending Accessibility Lawsuit

California Supreme Court issues more liberal rule for property owner to recover attorney fees after defending accessibility lawsuit. The California Supreme Court has issued a ruling making it easier for a commercial...more

LIttle Nell, et. al. v. City of Houston, et. al.

Immunity and Jurisdictional Drainage Fee Flow Chart

Jurisdictional Flow Chart created in response to a Plea to the Jurisdiction filed by the City of Houston and Daniel Krueger, in his official capacity, claiming the 129th District Court of Harris County, Texas, has no...more

Focus on Real Estate - November 2012

In This Issue: - 1 Case Comment: Southcott Estates Inc. v. Toronto Catholic District School Board - 2 Why Landlords Should Think Twice Before Terminating - 3 That’s Unreasonable! Where’s My Consent? - 4...more

Rogers Towers: Appraisal Dates and Deficiency Judgments: Is Close Good Enough?

In Florida, the legal standard for a mortgagee to obtain a deficiency judgment following foreclosure is to establish the difference between the amount of the indebtedness and the fair market value of the foreclosure property...more

Laches Does Not Preclude A Prescriptive Easement Claim

Every so often, that ancient and seemingly out-dated distinction between legal and equitable claims (and defenses) derived in the English Chancery Courts hundreds of years ago rears its head and reminds all attorneys that...more

SCC Rules on Mitigation and Specific Performance in a Real Estate Deal Gone Wrong

The concept of mitigation, in essence, is that a plaintiff cannot sit idly by, watching damages escalate if reasonable steps can be taken to avoid or reduce the loss. Having seen the leak in the dike, the theory would hold,...more

N.J. Supreme Court Decides Level of Causation Required to Seek Damages Under the Spill Act

In a recent decision, the New Jersey Supreme Court held that in an action to obtain damages under the Spill Compensation and Control Act (Spill Act), the Department of Environmental Protection (DEP) must show a reasonable...more

California Property and Business Owners Gain Protection from Predatory ADA Lawsuits

California business owners gained new protection against expensive, predatory lawsuits involving disability access laws last week as Gov. Jerry Brown signed into law Senate Bill 1186. It became effective September 19, 2012....more

Attorney Member of Public Interest Organization Properly Awarded Attorney Fees

In Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg, 2012 DJDAR 7386 (2012), the California Court of Appeal for the First Appellate District decided a novel fee recovery case brought under the California...more