Olshan Real Estate Law Blog | Olshan Law

MAI Appraisal Does Not Mean Made As Instructed

Thomas D. Kearns — Mon, 13 Jul 2009 09:00:01 -0400

A retail lease in SOHO provided for a renewal rent determined by an “independent MAI appraiser chosen by Landlord”. Should be pretty easy, right? Not so fast says Justice Tolub in Georg Jensen v. 130 Prince Associates LLC, NYLJ, 6/26/09, pg 26. The appraiser hired by the landlord worked for the management company for the landlord. In addition, there was no written retainer agreement with the appraiser, the written report was prepared well after the oral appraisal was given and the appraiser didn’t seem credible to the court. ”[T]he court finds it so flawed in its methodology as ...

Creative Martin Act Strategy Loses

Thomas D. Kearns — Sun, 03 May 2009 09:00:02 -0400

New York's Martin Act governs the sale of securities including cooperative and condominium apartments. Since the Court of Appeals CPC v McKesson decision in 1987 it has been accepted that individual purchasers do not have a private right of action under the Martin Act. Courts have held, however, that common law fraud actions remain available. The last 20+ years have seen an array of court decisions trying to find the exact line between common law fraud and mere Martin Act violations. Common law fraud is hard to show - you need an act or omission, scienter (bad intent) and reliance. So ...

Vacancies in Co-op Retail Space

Thomas D. Kearns — Fri, 16 Jan 2009 09:00:03 -0500

Retail storefront vacancies in Manhattan seem to be increasing. I was reminded of the recent change in Section 216 of the IRS code making it easier for a co-op to own its own retail space when I looked out of a bus window at a large vacant store on Madison Avenue. If that building is owned as a co-op and the co-op owns its own retail space, the co-op is taking a big monthly hit in revenue. If the co-op's monthly maintenance charges are based in part on rent from that now vacant store, the co-op will have a significant shortfall. I can just imagine being on a co-op board which sends a notice to ...