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Developers Must Establish Public Purpose to Justify Eminent Domain 

Eminent domain is the well established right of government to condemn or take private property for public purposes. Most arguments relating to eminent domain deal with whether or not the owners of taken properties received just compensation. The general rule

Click With Caution 

The statute of frauds, which dates back to 17th century England and continues in some form in every state, requires that contracts for the transfer of real estate interests and for the sale of goods above a certain dollar amount

Deal Diagnosis 

During the past decade, hospitals and healthcare providers have been on a building spree. Not only is the quantity of developments growing, but project size is on the rise. Hospitals and healthcare providers often build new because aging facilities cannot

Deposit Disputes 

Part of the toll of the ongoing commercial real estate slump is the high frequency of terminated deals. Scarcity of financing, valuation disconnects, and general economic concern all contribute to the “kill rate.” Of course, any time a deal is

Court's ADA Ruling Reminds Property Owners and Managers About Access Requirements 

Congress enacted the Americans with Disabilities Act as a comprehensive law designed to remedy discrimination — whether it is intentional or not — against those with disabilities in public and commercial facilities. The ADA requires continued efforts over time to

Conversion Conundrum 

As the housing market continues to suffer through its worst decline in recent history and demand for unsold units within recently developed condominium projects evaporates, the repositioning of condo projects into apartments may be a successful strategy for owners or

Courts Examine Brokers' Fiduciary Duties 

Once an owner hires a broker to sell or lease a property, a fiduciary relationship is established. The term fiduciary describes a position of trust The broker owes the seller loyalty and a duty to act in good faith during

Contamination Examination 

Real estate recessions create terrific investment opportunities &mdash the trick is figuring out which ones are right for you. With banks and loan servicers increasingly swamped by foreclosure properties, environmentally contaminated properties can offer particularly good deals. A fair amount

Exclusive-Use Covenants Often Restrict Retail Leases 

Exclusives, or restrictions imposed upon the permitted activities of tenants for the benefit of an anchor or other significant tenant, are fairly common in retail leases. A recent case decided by the U.S. Court of Appeals for the District of

Guide to Green 

The perfect example of local government hurdles to green building leapt off the newspaper page a few months ago. Former Vice President Al Gore filed a plan with the municipality of Belle Meade, Tenn., to install solar panels on the

Fair Housing 

The federal Fair Housing Act, as amended, makes it unlawful to discriminate in the sale or rental of a dwelling to any prospective purchaser or tenant. This prohibition includes making a dwelling unavailable to the prospective purchaser or tenant. Obviously,

Pay Attention to Specific Lease Terms to Avoid Litigation 

Although they are among the most common legal documents in commercial real estate, leases often are items of contention due to misunderstanding of terms or unspecific wording. As the following cases illustrate, landlords and tenants must pay close attention to

Supreme Court Favors Property Owner Rights in Development Challenge 

In June, the U.S. Supreme Court issued a significant decision concerning inverse condemnation, or regulatory takings, in the case of Palazzolo v. Rhode Island. The ruling states that acquisition of property with notice of a prior regulation restricting its use

Ruling Raises Issues About Who Pays CERCLA Cleanup Costs 

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to make those who created environmentally impacted properties responsible for cleaning them up. In particular, CERCLA allows current property owners to recover full or partial cleanup costs from

Risk vs. Reward 

Today’s economic climate has forced both public and private sectors to think outside the proverbial box to come up with innovative financing strategies. One strategy that has recently gained popularity is the sale leaseback. The mechanics of a sale leaseback

Retro Rejection 

When tenants file for Chapter 11 bankruptcy both landlords' and tenants' rights and responsibilities come under the purview of the U.S. Bankruptcy Code. Landlords cannot evict tenants in bankruptcy absent relief from the automatic stay, and tenants must continue to

Taking Issue with Taking by Regulation 

The story is familiar to property owners and legal practitioners In 1990, John and Florence Dolan attempted to obtain approval from the city of Tigard, Oregon, to replace their existing plumbing and electrical supply store in downtown Tigard with a

Swap Rent for Dot-Com Stock? Ask Tough Questions Before Proceeding 

With the explosion of dot com and high tech companies, some property owners are experiencing a new phenomenon tenants offering stock options or warrants in lieu of other forms of payment for lease transactions. This trend raises legal and business

States Speak Out on Free Speech in Malls 

Across the country, courts have weighed the right of free speech against private property rights with differing results. While the majority view says that speech is not protected on private property, some courts have held that free speech exercised in

New Legislation Encourages Developers to Clean Up Brownfields 

Enacted in 1980, the Comprehensive Environmental Response, Compensation, and Liability Act imposed liability for the release of hazardous substances on four categories of potentially responsible parties, or PRP the owner or operator of the facility at which the release occurred

Electronic Signature Advances Will Facilitate Online Business 

The world of electronic transactions has galloped far beyond the efforts of the legal community to develop laws that facilitate traffic on the Internet. Recently, Congress gave an unequivocal green light to those exploring the realm of electronic commerce. While

Greening Up 

In February, San Francisco Mayor Edwin Lee signed into law the San Francisco Existing Commercial Buildings Energy Performance Ordinance, requiring commercial building owners to file annual energy benchmark reports and to conduct more extensive energy audits every five years. New

Insurance Companies Tighten Coverage for Mold-Related Damages 

The recent anthrax scare amply illustrates the potentially devastating health risks posed by biological contaminants. It also underscores the reality that remediation of contaminated buildings is costly and disruptive. Terrorism aside, many in the legal and insurance industries herald toxic

Letters of Credit Help Protect Landlords Against Tenant Bankruptcy 

While the direction of the U.S. economy remains unclear, many businesses struggle to stay viable. In today's fast paced environment, even strong companies may succumb to financial pressures more quickly and with much more disastrous results than in the past.

More States Favor Mutually Dependent Covenants Rule in Commercial Leases 

In most states, commercial property leases adhere to the independent covenants rule, whereby landlords' and tenants' obligations are independent of one another. Thus, a tenant is expected to pay rent even if the landlord fails to uphold some of its