Articles Posted in Business Transactions

fatherOur firm wants to extend its best wishes to all Dads for a happy Father’s Day.  We would like to mention some gift ideas of a legal nature that cannot be purchased in an ordinary department store.

Your Father may be on the verge of retirement.  As such, he may be in the market for a qualified attorney  who will negotiate and document the terms of his business sale.  Such a sale may involve preparation of a contract of sale, coordination of the payoff of a business or equipment loan, closing document drafting and the like.  Once the transaction is complete, your Dad can enjoy a care-free retirement.

If your Father is not ready to retire, he may have an ongoing business in the process of relocation.  Our attorneys would welcome the opportunity to negotiate the commercial lease for the new space. We would negotiate its terms in a manner most favorable to dear old Dad.

stripcenterOur firm is routinely involved in commercial lease negotiations.  This post will address the “give and take” that takes place in such negotiations, while discussing the legal issues that commonly arise.  For convenience sake, let’s assume that our attorney is negotiating on behalf of a retail store tenant engaged in a food business in a suburban strip center.

Commercial leases typically span several decades and are not rent-regulated.  Both landlord and tenant cannot envision business conditions or pricing over such a timeframe.  Most leases will run for an initial term, potentially for ten years.  The parties may wish to include a renewal provision, potentially for another five years.  Is such a renewal term to be a requirement for the landlord to offer or an option to renew on behalf of the landlord or tenant?  If the option to renew is for the tenant, one may find provisions as to the timeframe in which to exercise the option, so that the landlord can make the space available to another tenant without a vacant period of time.

The determination of rent to be charged during the renewal period is tricky.  The parties could state in the current lease that the renewal period rent will be a certain percentage above that charged in the last year of the lease.  This provides certainty but may be too high or too low for market conditions at the time of renewal.  The other option is for the renewal rent to be determined by an appraiser to be mutually selected by the landlord and tenant.  The inherent problems in this formula are that there may be a disagreement on the selection of the appraiser and the rent to be charged would be uncertain.

church-300x225News reports have recently discussed the Archdiocese of New York and their seeking Court approval to mortgage church-owned property.  The purpose behind such action is for the Church to obtain a loan of $100,000,000.00 from JP Morgan, Chase, N.A., backed by a mortgage on Church-owned property located at 457 Madison Avenue in midtown Manhattan.  The loan proceeds will apparently be used to pay monetary settlements to the victims of the Church child abuse scandal.

Laymen may be asking why Court approval is necessary for such a transaction.  If an individual owns property, and seeks to obtain a mortgage on the property in order to raise funds, generally, Court approval is not needed.  The difference in this situation is that the Archdiocese of New York is a Religious Corporation, and, as such, is subject to the New York Religious Corporations Law.

As prior blog posts have discussed, any New York Religious Corporation seeking to buy property, sell or lease property, or obtain a loan backed by a mortgage on property it owns, must obtain approval of the New York State Attorney General’s Office.  The reason behind this statute is to make sure that a religious institution is not “sold out” from under its members by unscrupulous individuals or leaders.  Most religious institutions, of course, do not own the large real estate portfolio that the Archdiocese of New York does, and may own a single building which is used for its offices and place of worship.  The Religious Corporation Law protects all such institutions by requiring Court approval for such important real estate transactions, in order to insure that loan proceeds are used for purposes that congregants will believe will advance the legitimate interests of the church.

touroRecently in the news is a story relating to control over Touro Synagogue, located in Newport, Rhode Island.  The Touro Synagogue was built prior to the Revolutionary War and is one of the oldest congregations in the United States.  As with many older institutions, over the centuries, the original congregation and their descendants eventually moved from the area in question.  Many of these individuals settled in New York, and formed a new congregation, named Shearith Israel.  The original congregation in Rhode Island dwindled and even fell dormant for a period of time.

According to the Court records, there is a dispute between the current congregation of Touro Synagogue, now named Jeshuat Israel, and the New York congregation, Shearith Israel, over who was the rightful owner of the Touro Synagogue, and who has the right to make decisions such as the sale of ornaments in order to raise funds.

Our firm has handled similar cases involving control over religious institutions.  Many churches and synagogues experience changing congregations and conditions over a long period of time.   Depending on the location of the institution, members may move from the area, causing a sharp decrease in active membership.  At that point, the institution must decide whether to continue in its present location, or consider moving to another part of the New York where membership may increase.  Moving an institution will usually involve the sale of the current location.  Such a sale must be approved by the Board of Trustees or other governing body of the institution in question.  Prior blog posts have discussed the handling of legal disputes relating to control over a religious corporation.

leaseOur firm is often involved in landlord-tenant situations involving assignments of commercial leases.  What this means is that one party to a commercial lease (usually the tenant) wishes to transfer their rights and responsibilities to a third party, either an individual or company who is not a party to the original lease.  Most often this occurs when there is a potential sale of the business associated with the lease.

For example, a commercial tenant operates a car repair business and has a lease for the business for a period of five years.  A third party approaches the business owner and offers to buy the business.  As part of the purchase, the lease needs to be assigned from the current tenant to the purchaser of the business.

The main legal issue relates to the lease itself.  Most, but not all, commercial leases contain a clause allowing assignment of the lease to a third party with the consent of the landlord.  They may also state that such consent is not to be unreasonably withheld or delayed.  Some leases will further delineate what “unreasonable” may entail.  For example, it may state that it is not reasonable to refuse consent to a purchaser who intends to operate the same type of business as the current tenant, assuming they have the financial standing to assume the lease.

name.jpg Our firm often receives inquiries from individuals who desire to legally change their name. People may desire to change their name for many reasons. Some want to avoid a name which may be linked to celebrities or individuals with unsavory or even criminal histories. Others may need their name legally changed so that it matches other legal documentation that they may have, such as a passport. Whatever the reason, this post will discuss the legal requirements required for name changes in New York State.

The first step in legally changing one’s name is to file a Petition in the Supreme Court in the county in which the individual currently resides. There are legal requirements regarding the contents of the Petition, including whether the individual has ever been convicted of a crime, judgments against the individual, pending litigation involving the individual, and information regarding child support and spousal support obligations. The reason that this information is required is that a person may attempt to evade legal obligations, such as judgments or child support, by changing their name. In order to prevent this, a name change Petition will not be accepted unless all information regarding such outstanding legal obligations is provided.

The Petition also has to provide the reason for the name change application. As discussed above, there are many valid reasons for such application. Once the Petition is complete, it is filed with the appropriate Court. The Court will also require a certified copy of the applicant’s birth certificate, showing the original name.

arbitration.jpgA recent series of articles in the New York Times discusses the growing prevalence of arbitration in resolving legal disputes. This blog has previously discussed arbitration proceedings in the context of New York Yankees slugger Alex Rodriguez (hereinafter “A-Rod”), discussing his attempt to reverse an arbitration ruling which upheld his long suspension. As baseball fans are aware, A-Rod was unsuccessful in having his suspension overturned, and ended up sitting out the entire 2014 season, and returned for the 2015 season, leading the Yankees in home runs.

A-Rod aside, the issue to be discussed is whether arbitration may be a better vehicle for dispute resolution than the traditional court system. In arbitration, parties agree to submit a dispute to a neutral, third party arbitrator, rather than to the court system. The first issue is the arbitrator to be utilized. Many contracts will state that the dispute should be submitted to a local branch of the American Arbitration Association (AAA). The AAA will generally supply a list of arbitrators with expertise in the area of the dispute, and the parties are allowed to rule out any arbitrators who may have a conflict of interest.

Other agreements may allow the dispute to be submitted to a religious tribunal, such as a Beth Din. This usually occurs when the disputing parties are members of the same religious group and prefer than their dispute be heard by members of their group, rather than in the Court system. Of course, if one of the disputants is not a member of the group, they may feel that they are at a disadvantage when the dispute is heard. Another aspect is that a religious arbitrator may apply religious doctrine and scripture, rather than civil law, in making their decision.

rocky.jpgThe political season is well under way. Given that our country’s next presidential election is about 14 months away, we see more and more politicians gearing up for a run for our nation’s highest office. Another well-worn aspect of such political events is the use of a popular song by the politician during a rally.

Going hand-in-hand with such use of a song is the usual objection by the songwriter when the politician using the song has political views objectionable to the writer. Some recent examples are Donald Trump’s use of R.E.M.’s song “It’s the End of the World as We Know It (And I Feel Fine),” and Rowan County, Kentucky Clerk Kim Davis‘ use of the song “Eye of the Tiger” by Survivor when rallying against the issuance of marriage certificates to same sex couples.

In each case, the musician has objected to the use of their song during these political rallies. This blog post will explain the legal underpinnings of such objections. Who has the legal right to prevent a song from being used, and under what circumstances? The answer lies in the U.S. copyright law.

rabbi.jpg Our firm is often retained to represent parties relating to their employment at religious institutions. Such employment refers to, among other persons, the clergy, whether it is a Rabbi or Cantor at a Synagogue, a Minister or Reverend at a Church, or an Imam at a Mosque. A dispute may arise between a clergyperson and the institution at which they officiate. Such disputes may be the result of the termination of said employment, the interpretation of an employment agreement, or the failure of the institution to make payments pursuant to a retirement agreement or pension. This blog post will discuss the various legal issues relating to such disputes.

The first issue relating to a clergy’s employment is whether the individual at issue is an independent contractor or an employee. An exact legal definition of these categories is beyond the scope of this post. However, many smaller institutions attempt to categorize their clergy as independent contractors. This usually means that no taxes are withheld from their pay, and they are free to set their own hours and employment conditions. An employee is subject to W-2 tax withholding, and must generally keep regular hours and is subject to a greater degree of control by the institution in question.

If the individual clergy is classified as an employee, the next question is whether there is a written legal contract for their employment. Most clergy will have a written agreement with the religious institution which sets forth their terms of employment, salary (including any bonuses or pensions), benefits, renewal terms, and duties which they are expected to perform. Such agreement will usually be for a set period of time (for example, five years), and may contain provisions for renewal after expiration.

sages.jpgNews outlets have recently reported a case involving a dispute over the sale of a synagogue located on the Lower East Side of New York City. Certain individuals, claiming to be members of the Board of Trustees, have submitted a petition to the New York State Attorney General seeking approval for a sale in the amount of Thirteen Million Dollars.

At issue is a dispute over whether the individuals who claim to be Board Members are, in fact, legally elected Board Members of the institution in question. Since the synagogue has been in existence for seventy-six years, there are many legal issues related to the authority of any individuals may have the authority to petition the Court to allow a sale of the property, which is also being used as a nursing home for the aged. An excellent overview of this highly contentious case to date may be found by reviewing a recent article in the New York Observer.

Readers of this blog may recall that this subject has been written about by us previously. A dispute involving a Hindu temple was analyzed in a recent post. Of course, every case has its own unique set of facts, but it is important to note that Courts are reluctant to intervene in decisions that are essentially religious in nature, for example, if a spiritual leader decides to excommunicate certain members. Such excommunicated members will have a difficult time finding a Court to overturn such a decision, due to First Amendment concerns.