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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

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

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

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

Transfer Request 

Bundle of sticks is the idiom commonly used to describe the rights that constitute fee simple property ownership. The common law right to receive compensation for injury to real property can be the most important “stick” within that bundle. It

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

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

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

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

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

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

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

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

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

Default Decisions 

In the current market environment, commercial property landlords are experiencing an increase in the number of tenants that are party to U.S. Bankruptcy Code Chapter 7 and Chapter 11 proceedings. Landlords should have a basic understanding of their rights when

Domain Disputes 

Eminent domain issues affect residents and businesses in many communities where the law permits the local government to take private property for public use real estate developments or public purposes. While state laws vary greatly, the U.S. Supreme Court recently

Clear the Air 

From asbestos to lead based paint, environmental problems and their associated risks always have been a concern in the commercial real estate industry. Today, property owners and investors can add vapor intrusion to that list of worries. An indoor air

Duty Bound 

What kind of duty does a real estate broker owe his client? Honesty ? and full disclosure ? is the best policy it is better to err on the side of caution than for brokers to potentially breach their duty

A Good Clause 

With almost daily reports of either blizzards in the Midwest, tornadoes in the mid Atlantic states, fires in California, or hurricanes in Florida, it's no surprise that the once benign and sometimes ignored clauses addressing "acts of God" are now

Hidden Hazards 

Rising gas prices and a highly competitive market have closed more than 3,000 of the nation&rsquo s 164,292 gas stations in the last year, the biggest drop in five years, according to National Petroleum News. In June, ExxonMobil announced it

Interpreting the Rules 

Since the U.S. Supreme Court's decision on Kelo v. City of New London, which permitted a local government to use the power of eminent domain to take private property for economic development, at least 47 states have revisited their eminent

Litigation Alternatives 

As business litigation costs and length increase, more commercial real estate companies are turning to alternative dispute resolution to solve disagreements with partners, suppliers, customers, and other professionals with whom they have contractual relationships. ADR offers parties the ability to

No Uncertain Terms 

What does it mean to vacate the premises in commercial leases? The denotation can be critical, particularly in cases where vacating the premises triggers a default. Last August, the District of Columbia Court of Appeals was called on to