Real Estate Transactions and Finance

September 11, 2020

Changing Conditions in New York’s Commercial Leasing Landscape Require Flexible Strategies

We note that recent news concerning New York’s commercial real estate landscape has been rapid and stunning. Iconic businesses such as Sears, JC Penney, Modell’s and Brooks Brothers have filed for bankruptcy protection or closed retail stores, office spaces remain underutilized and the restaurant business is experiencing significant challenges. Tenants that remain are rethinking their need for expensive commercial space. Landlords are considering converting properties to new uses in order to fully lease available space. This post will examine some of the current trends in commercial leasing and provide suggestions as to how such challenges may be overcome.

Century 21, the iconic downtown Manhattan retail fixture, announced that it is closing all of its stores. As we reflect on the 9/11 terrorist attacks today, we also recall that Century 21 was committed to operating near the World Trade Center, rebuilt and reopened. Unfortunately, the effects of Coronavirus on its business could not be overcome due to the tenant’s inability to collect on its claim for business interruption insurance. Such insurance may be required by a landlord in a commercial lease. It provides that if a tenant’s business is interrupted, that lost revenues and the like will be paid and will cover the rent that the tenant could not pay due to lost revenues. Business interruption insurance covers lost revenues due to physical damage from terrorist attack or casualty, but often contains exclusions for matters such as a pandemic. Even though common sense dictates that coronavirus has interrupted business to the extent that insurers should cover the claims, many tenants have been unable to collect on such insurance and use those funds to become current on their rent obligations. Without revenues, tenants have been otherwise unable to pay their rent and have decided to vacate space.

In the office market, Covid 19 has frightened corporate leaders and employees, leading to many expecting to work from home for months to come. This is leading to high office vacancy rates and new leases (if any) for shorter terms. Subleases may become more prevalent so that tenants do not have to commit to long-term financial obligations.

June 11, 2020

Post-Covid Re-Opening: Back in the Swing of Things

By Weiss & Weiss

We hope that our readers have been fortunate enough to have stayed healthy during these trying times. Finally, our home region has commenced the post-Covid re-opening process. We are currently in Phase II. Our attorneys hope that all business activities will return to “normal” as soon as possible, just as baseball fans want to hear the “crack of the bat” as their favorite player hits a home run. Since it is time for us to catch up on routine medical care, it is also prudent to consider returning to meeting your legal needs. This post will address the specific areas that can be covered by our lawyers at this time.

New real estate transactions have diminished in recent months. This author anticipates a delayed Spring market, meaning that contracts that may have been signed in March and April will likely be signed in the upcoming weeks instead. Covid shutdown regulations forbid in-person showings by real estate agents. Property owners were scared to allow potential buyers into their homes for viewings. Phase II allows real estate agents to show properties in person, rather than merely virtually. Sellers have become aware that buyers concerned with diminished quality of city life may now crave serene suburban living. It is potentially an optimal time to sell one’s house.

Restrictions on retail establishments have started to loosen, allowing for curbside pickup and potential additional shopping options. Restaurants are permitted to serve with outside seating. While these sound like positive developments, the income stream to the commercial tenant with such restrictions is severely limited. As such, it may be time to request that your attorney review your commercial lease and seek a modification. Tenants are otherwise expected to pay full rent, without being able to fully occupy the space and generate the same amount of income per square foot.

April 22, 2020

The Show Must Go On – Closings and Coronavirus in New York State

By Weiss & Weiss

Despite current conditions, the purchase and sale of real estate in New York is continuing. This post will discuss how COVID-19 has changed the “nuts and bolts” of an ordinary transaction, from start to finish. First, let’s assume a homeowner wishes to list her home for sale. Due to social distancing expectations, mass showings of properties, such as “open houses,” would be frowned upon, if not prohibited. However, individual showings by appointment of properties, by licensed real estate brokers, may continue. Another option being utilized is virtual showings of properties on various online platforms. This allows potential buyers to view the property while maintaining safety. Younger or first-time homebuyers may be more comfortable with the virtual option, as they usually have more familiarity with online services.

Once there has been an accepted offer, the next step is often the hiring of a home inspector to inspect the property. Currently, this is being allowed, but with the restriction that the inspector will inspect the property alone, without being accompanied by the potential buyer. Once the inspector completes his work and issues a report, the buyer can use this information in contract negotiations.

The parties will then negotiate a Contract of Sale, which is traditionally prepared by the seller’s attorney. As contracts are prepared and transmitted online, current conditions will not affect this portion of the transaction a great deal. The attorneys, buyer, seller, and brokers can still exchange information and offers online or by telephone without violating any social distancing restrictions.

February 27, 2020

Fear Gone Viral

By Weiss & Weiss

Most of us have been recently inundated by reports of the Coronavirus pandemic. Although many of our readers do not travel to some of the afflicted locations, fear has a way of becoming contagious in its own right and can have negative business consequences. Fundamentally, the fear is based upon not only becoming sick but also on the effect that widespread contagious illness can have upon the economy. This post will address how our attorneys respond to unfavorable financial times and the strategies to be rendered.

Real estate transactions tend to be voluntary business activities. For instance, a proposed buyer may be renting an apartment and be in the market to potentially purchase a house. Typically, a buyer needs liquid cash assets to post a downpayment and have the cash needed to close. If the stock market continues its losses of the past few days, a buyer may decide not to move forward because he needs to sell additional assets than previously intended in order to raise the cash needed. An experienced attorney would advise such a person that real estate is an investment that can be sold at a future date, hopefully at a profit. However, continuing to rent an apartment does not provide an asset to be sold at a future date or potential tax benefits such as deducting mortgage interest and real estate taxes paid. Now that we are about the enter the Spring market , new inventory and opportunities for buyers are available. Perhaps if a seller is concerned that her house will not sell as readily in this economy, the price may be reduced to attract additional buyer interest.

Certainly, commercially leased properties may see reduced customer traffic if consumers are afraid to be in public places and prefer to order products online or not visit restaurants where ill persons may be present. If such conditions persist, a tenant may need a seasoned lawyer to negotiate a lease modification or lease surrender , thus assisting the tenant in not being required to continue in a lease that is not consistent with current economic conditions. If such a modification cannot be negotiated, the tenant may be advised to “go dark” . Should the landlord not be willing to accept these options, he may seek to bring a landlord-tenant proceeding against the tenant.

February 6, 2020

Arrested Development- How to Get the Advantage When a Developer Is Purchasing Your Property

By Weiss & Weiss

We have posted previously about the change of use of properties in the region served by this law firm. Real estate developers may be interested in such properties because they envision a potentially new profitable use for the property, especially if the use changes. For instance, an existing swim club has a dwindling membership base or a nursery business is no longer viable. These obsolete properties have large acreage and could be used for assisted living facilities or multi-family housing. Let’s imagine that an owner of a single-family house is next door or overlooks such a site. It is not hard to believe that the homeowner would not want to live through the rock blasting and noise created by bulldozers and years of construction. Also, the assisted living facility or multi-family housing may change the character of the neighborhood or make it otherwise undesirable to the homeowner. This post will address the options available to such a homeowner.

Usually a developer in this scenario needs to apply to the applicable municipality to request the change of use for the property. There may be valid objections that the neighbors can raise, such as increased traffic and roads that do not accommodate those who will visit and use the facility. If the homeowner does not believe that objecting to zoning changes and the like would be successful or if the homeowner merely wishes to negotiate a deal for himself, there are other options available. One option may be to sell the house to another individual who may not be aware of the potential development of the neighboring property.

Developers who want a particular building site are financially well equipped. If it makes monetary sense, a developer may consider buying the single-family home that stands in the way of his development. If the homeowner is willing to leave his house, he should hire an experienced attorney to negotiate the most favorable terms. The best deal for the homeowner may be to sell the house and to have a qualified attorney include certain provisions in the contract. All seller expenses should also be paid by the developer. These expenses include payment of the seller’s transfer taxes, attorney fee , broker commission and any other costs of the sellers. In addition, the negotiated price should also be high enough to pay off the seller’s mortgage so that the seller is not out-of-pocket at the closing.

January 10, 2020

New Foreclosure Law Passed in New York

By Weiss & Weiss

A recent article reports on a new law signed by New York Governor Andrew Cuomo which is meant to assist defendants in foreclosure actions. This article will explain the law, as well as its possible impact on both plaintiffs and defendants in foreclosure lawsuits.

The law amended Article 13 of the New York Real Property Actions and Proceeding Law to allow a defendant to raise the issue of “standing” at any time in the legal proceedings. A non-attorney may first ask what is the issue of standing and how this change in the law benefits a party being foreclosed. Standing is a legal defense relating to the plaintiff’s basic right to bring a foreclosure action (or any other type of action). In order to commence a foreclosure lawsuit, the lender (usually a bank or loan servicer) must show that it is a corporation licensed to do business in New York State, and also it is the holder of the note and mortgage which is the subject matter of the lawsuit.

Failure to meet these requirements may result in the lawsuit being dismissed due to a lack of standing. Because many loans are transferred between different lenders and loan servicers on a frequent basis, it is entirely possible that the party bringing the foreclosure action may not have “standing” as the loan may have been sold to another entity prior to the case being filed. In that case, the plaintiff may lack standing, and the action may be dismissed.

October 4, 2019

Do Real Estate Sales by Religious Institutions Benefit Congregants?

By Weiss & Weiss

We wish to share a recent news article with our readers concerning whether selling real estate owned by religious institutions to developers benefits congregants and the neighborhood in general. Many properties owned by religious institutions have been owned by the organization for decades and, during that time, served the needs of congregants. However, perhaps over the years the particular population of a religious denomination in an area has dwindled and the institution is currently serving a greatly reduced number of congregants. In addition, long-held properties may be facing deferred maintenance issues such as a roof that needs replacement and the like.

Of course, real estate developers have always been hungry for a good deal and target congregations that may own such obsolete properties. Such developers seek to demolish the religious building and change the use entirely, perhaps to build luxury apartments to be sold for a handsome price. As a result, not only does the religious institution cease to exist, but the character of the neighborhood may change. Persons served by the soup kitchen in the church will have to find somewhere else to go while a wealthy developer will count his money.

The law in New York does provide some safeguards for congregants in this situation. As we have discussed in prior posts , a New York Religious Corporation seeking to sell, lease or buy 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 Attorney General reviews a petition presented by the institution in support of the contemplated transaction. Such petition needs to contain the governing documents of the religious institution, proof of the due calling and required vote of the trustees and congregants as needed by the governing documents and a complete description of the transaction in an affidavit. In sum, the Attorney General is also looking to confirm that the proposed deal benefits the congregants. For instance, if the transaction reduces mortgage debt and the new mortgage has more favorable terms, the Attorney General is likely to approve it. In the alternative, if the building is sought to be sold and a new building may be built in a distant location which prohibits attendance by current congregants, the Attorney General may determine that such a deal will not adequately serve the needs of current congregants and will be rejected.

September 11, 2019

Pumpkins, Changing Leaves and the Fall Real Estate Market in New York

By Weiss & Weiss

The prevalence of pumpkin flavored products and the approach of colorful leaves signals that we have entered the Fall real estate market in New York. This post will address the implications of the change of seasons and how that affects real estate transactions. For the purposes of this discussion, single family homes are being analyzed because apartments and townhouses sell more easily during all times of the year.

Negotiation strategies employed by your attorney may change once the Spring market has passed. In the area served by our attorneys , many single family homes are listed in the late Winter or early Spring, are in contract by June and close in August. This typical schedule follows the needs of those purchasers who wish to have their children start school in early September in their new home.

A seller’s situation will depend upon whether her home was listed since the Spring and did not sell or is a new listing as of the Fall. A new listing may receive more attention from buyers because inventory is typically lower in the Fall and older listings have already been evaluated by buyers. Sellers who have listed their home for several months may already need to consider price reductions and other concessions in order to sell the property. It should be noted that reducing the price will potentially allow the property to more readily appraise to the figure indicated in the contract.

May 30, 2019

Considerations for Buying a Business in New York

By Weiss & Weiss

We often have inquiries from clients considering the purchase of a business. An experienced attorney should be consulted when commencing this process. Initially, the seller’s attorney will deliver the contract to the buyer’s attorney for negotiation. Should the business being sold be a franchise, the final contract should be conditioned on approval of the franchisor to the buyer conducting business under the franchise name.

After consulting an accountant to confirm that the business to be purchased is financially viable for the buyer’s future income needs, the financial terms of the deal are to be structured. There may be a broker who has negotiated the initial terms, which may be modified during the contract negotiation process. Usually the payments required of the buyer are the delivery of the downpayment to the seller’s attorney to be held in escrow until closing and another payment at closing. The payment at closing may be the last payment to be made or the buyer may sign a promissory note for subsequent payments to be made after the purchase.

Particular protections need to be in place on behalf of the buyer. A lien search should be obtained prior to closing, so that the seller obtains lien releases for equipment and tax matters that may have an effect on the buyer. For example, if a freezer is to be conveyed and the seller has a business loan on such equipment, a UCC Financing Statement is likely to be filed evidencing the loan. If the loan is not paid at the closing and the UCC remains, the buyer is acquiring the freezer subject to the seller’s loan and will not own it outright.

May 3, 2019

Renting to Own in New York

By Weiss & Weiss

There are many opinions regarding whether being a renter or owner of one’s residence is the correct decision in New York. Many factors, including one’s economic situation, must be considered in whether to rent or buy real property. One additional possibility is renting the property with an option to buy. This post will discuss the legal issues related in entering into such an agreement.

Initially, there must be an agreement with the owner of the property regarding the terms of the rental. This is commonly documented in the form of a lease. The lease will delineate the monthly rental amount as well as the lease term and other provisions. If the parties agree, an option to buy the property can be included in the lease, or as a separate agreement.

The most common arrangement is to provide the renter with the option to purchase the premises at a set price during the rental term, or at the expiration of the rental term. If the renter exercises her option to buy, then the attorney for the property owner should prepare a contract of sale to be executed by all parties. The signed contract of sale is necessary should the potential purchaser need to apply for a mortgage loan to purchase the premises. Any institutional lender will need a copy of the fully executed sale contract in order to process a standard loan application. In addition, a down payment, typically in the amount of ten percent (10%) of the purchase price is usually also necessary to obtain a traditional bank loan. The lending institution requires proof of the down payment deposit into the escrow account of the seller’s attorney.