Category Archives: Landlord-Tenant

Subdivision Declaration Prohibited Daily/ Weekly/ Monthly Sublets: Court Decides if One Year Rental was Covered or Permitted

This was originally posted on the SGR blog.

Reported decisions abound relating to the violation/enforcement of the prohibition of short-term rentals of coop and condo units. But are those restrictions enforceable where contained in the declaration of a residential subdivision in which each singular property was separately and privately owned?

LG Lakeside Limited Liability Company, owned by Glenn and Laura Kupsch, completed the construction of a home at 6 Mayfair Drive in Bolton Landing, Warren County in early 2018/late 2019. The home is located in the Mayfair Resort subdivision on the shores of Lake George, with all homes in the subdivision subject to a Declaration of Covenants, Restrictions, Easements, and Assessments dated May 15, 2012, and amended on November 13, 2013.

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Legal Loggerheads at Horseheads in Chemung County: Constructive Trust and Unjust Enrichment Claimed

This was originally posted on the SGR Blog.

Failed romantic relationships, in the course of which the parties purchased and sold real property and other assets, are a constant source of post-breakup litigation asserting claims for “constructive trust” and/or “unjust enrichment”. But, as a recent case illustrates, even where based on the same “facts”, the two distinguishable causes of action may lead to different outcomes.

Jim Clark and Michele Locey were involved in a long-term intimate relationship. Clark was in the business of building residential homes and Locey was a real estate broker. Together, they engaged in a business venture in which they would buy parcels of land, build residential homes, and sell for a profit. In 2005, they bought a lot in Florida as tenants in common for their personal use and as an investment and built a house on the property. Clark ultimately contributed approximately $103,000 to that property and Locey invested approximately $400,000. In 2009, Clark deeded his interest in the Florida property to Locey’s living trust and Clark was discharged from the mortgage. In early 2012, they decided to sell the Florida property. Clark then again deeded his interest in the Florida property to Locey’s living trust upon the request of the title company.

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Month-to-Month Tenant Exercises Purchase Option: Did Option Survive End of Original Lease Term?

This was originally posted on the SGR Blog.

A lease term ends but the tenant nevertheless remains in possession. The tenant becomes a month-to-month “holdover” tenant on the same terms as the lease that ended. But what if the lease that was concluded contained an option to purchase the premises? Was the exercise of that option legally enforceable by the holdover/tenant?

Valeria McMillan and Roderick Francis (tenants) sued Christoper Marengo for specific performance of a purchase option contained in a lease for real property. They entered into a lease with Jack Colbert dated October 26, 2012, for property located in Bronx County, to be used as a residence and home-based business. The lease contained a purchase option. The option clause provided, in part:

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Was Residential Holdover Proceeding “For the Birds?”: Pigeon-Feeding Tenant Faced Eviction for “Nuisance”

This was originally posted on the SGR Blog.

Pigeons are synonymous with New York City’s high-rise ecology. Pets to be fed by some. An annoyance to others. But, as a recent case illustrates, a pigeon-feeding tenant may face eviction if her conduct rises to the level of “nuisance.”

GSKP LLC filed a nuisance holdover proceeding seeking possession of unit no. 3 at 28 Bond Street from Margaret Lee. The premises were not subject to the Rent Stabilization Law or the Rent Control Law. The premises were rent-regulated pursuant to Article 7-C of the Multiple Dwelling Law. The Notice of Petition and Petition alleged that the term for which the premises were rented expired on November 30, 2018.

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Would Garage Be Permitted To Operate Rent Free During Pandemic?

This was originally posted on the SGR Blog.

Court Determines if Frustration of Purpose Defense Applied

The pandemic has unquestionably, materially, and adversely affected many businesses that have been directly impacted by New York State Executive and New York City administrative orders restricting work and other activities. But, as a recent case illustrates, those legal mandates and prohibitions may not suffice to sustain the defense of frustration of purpose,

Union 16 Parking LLC operates a parking garage at a building owned by East16th St. Owner LLC. TMO Parent LLC signed a good guy guarantee in connection with Union’s lease. Owner claimed that Union had not paid rent since April 1, 2020, and owed over $1 million through November 1, 2020. They argued that the lease did not permit Union to withhold rent under any circumstance. And did not contain a force majeure provision.

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Frustration/Impossibility/Casualty/Eminent Domain: Rent Default Restaurant Asserts Quartet of Legal Defenses

This was originally posted on the SGR Blog.

Certain defenses to claims by landlords against commercial tenants for rent accrued but unpaid during the pandemic have become almost “boilerplate.” The frustration of performance. Impossibility of performance. They were closed by casualty. But, as a recent case illustrates, joining that panoply is the defense that governmentally-ordered restrictions or shutdowns constituted a taking by eminent domain that excused the payment of rent.

111Fulton St. Investors, LLC is the landlord for a commercial space located on the ground floor of a building in Manhattan. Fulton Quality LLC entered into a lease for the premises in 2011 for a twelve-year term. Quality runs a restaurant at the site. Investors insisted that Quality was in default of the lease and pointed to an October 30, 2019 letter allegedly sent to Quality that sets forth the basis of the default. Quality later cured its defaults but stopped making payments in March 2020. Another default letter was sent in June 2020. Investors sued and moved for summary judgment seeking the amount it claimed was due.

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Pandemic Meets Allocation of Risk on Fifth Avenue: Was Luxury Retail Tenant Constructively Evicted?

This was originally published on the SGR Blog.

Commercial tenants routinely assert both frustrations of purpose and impossibility of performance as defenses to claims for non-payment of rent accruing during the pandemic. And, as a recent case illustrates, the defense of actual or constructive eviction has joined that panoply, with a similar result.

Valentino U.S.A., Inc.’s entered into a lease with Thor 693 LLC for lower level and ground/second/third-floor space at 693 Fifth Avenue for the display and sale of luxury womenswear, menswear, goods, and accessories.

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Court Orders Tenant to Wear Mask

Copyright by, and republished with permission of,  Apartment Law Insider

A tenant who flouts building rules and disregards the city’s mask mandate is likely to spark complaints from neighbors and staff members who are concerned about their health. The eviction moratorium doesn’t mean a landlord can’t take the matter to court. Consider the recent case of a Brooklyn landlord who sought injunctive relief and a temporary restraining order against a tenant based upon nuisance conduct that created health and safety risks affecting other occupants of the building.

What Happened

The landlord claimed that the tenant violated his lease and building rules because he: (1) refused to wear a mask over his nose and mouth or socially distance in common areas and the gym; (2) allowed his dog to run “off leash”; and (3) regularly caused marijuana smoke to emanate from his apartment. The landlord submitted copies of the lease agreements, multiple photos showing COVID-19-related signs posted throughout common areas, and affidavits from staff members and the tenant living in the apartment directly beneath the problem tenant.

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State/NYC Ordered Pandemic-Related Shutdown of Retail Store: Did Mandates Trigger Defense of Impossibility of Performance?

This was originally posted on the SGR Blog.

Commercial tenants sued by their landlords for non-payment of rent have resurrected a broad panoply of commercial contract “defenses” related to the pandemic-ordered shutdowns—such as casualty, frustration, and impossibility of performance. For the most part, the “defenses” failed. But, as a decision released late last week illustrates, the “defenses” are not always futile.

The Governor of New York (by Executive Order) and the New York City Council (by amendment to the Administrative Code) imposed a moratorium on commercial evictions and suits on personal guarantees where the non-payment of rent is caused by the COVID-19 pandemic. But the Orders and Code do not prohibit lawsuits against the tenant for rent.

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Shootout at the Poonam on Park Hill Ave: Was Security Lax and Incident Foreseeable?

This was originally posted on the SGR Blog.

Terry Kellman sued Poonam Apts. LLC, the owner of 180 Park Hill Avenue on Staten Island, and Jelene Greenfield, the building’s managing agent, for injuries sustained when he was shot at the building by Angelo Nesemi.

Kellman asserted two causes of action for negligence. In the second negligence claim, he asserted that Poonam and Greenfield were negligent in failing to take proper precautions for his safety, hiring, screening, training, supervising of its employees, and failing to adopt appropriate procedures for the protection of visitors. Poonam and Greenfield moved to dismiss the complaint.

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