Real Estate, Condemnation & Trust


In-depth analysis and practical advice on topics relevant to your practice. Find all of the Real Estate, Condemnation, and Trust Litigation Committee's articles in this archive.


HVACs in the Age of COVID: Safety, Lease Obligations, and More
By Howard Jeruchimowitz and Michael Hass – May 10, 2021
Given the virus’s easy transmission through the air, there has been considerable focus on the ventilation systems in the work environment.

A Look Inside the Climate Change Initiatives in Biden’s American Jobs Plan
By Lauren A. Ferrigni – April 20, 2021
While the plan focuses broadly on making traditional infrastructure improvements, it also encompasses climate-focused policies dedicating hundreds of billions of dollars toward tackling the issue of climate change.

The Empire Strikes Back: After Recent Tenant-Friendly Decisions, a Victory for Commercial Landlords
By Cara Mittleman Kelly – April 6, 2021
The highly influential U.S. District Court for the Southern District of New York issues pivotal decision for COVID-19 commercial lease disputes.

Water Wars: Litigation over PFAS Chemicals Expected to Increase as New EPA Administrator Takes the Helm
By David J. Marmins and Morgan E. M. Harrison – March 22, 2021
EPA administrator Michael Regan has vowed to prioritize PFAS regulation and enforcement. Consumers, municipalities, and water utilities see blood in the water to seek redress for PFAS contamination against a host of industries that made and used fluorinated chemicals.

Early Lease Terminations: The Duty to Mitigate Damages and the Role of the Expert Witness
By C. Knox Withers and Georgina C. Shepard – February 28, 2021
What obligation does a commercial landlord have?

Illinois Appellate Court Holds Statute Bars Post-Confirmation Foreclosure Claims
By Scott B. Mueller – February 28, 2021
Though it may appear substantively counterintuitive—the reverse mortgagee was able to foreclose on a property, truly in fact, occupied by the dead mortgagor’s spouse—the First District’s opinion was doctrinally correct.

Score Another Win for the Tenants’ Bar in the Wake of COVID-19 Shutdown Orders
By Gina Abbadessa – February 25, 2021
A Massachusetts judge rules that emergency orders frustrated the purpose of a lease for a café.

A Guide to Safeguarding the Cannabis Landlord-Tenant Relationship
By Cassia R. Furman – January 25, 2021
Practical tips for lease due diligence and negotiations for cannabis uses.

Nearly a Year Later, Is COVID-19 Still a Public Health "Emergency"?
By Anthony F. DellaPelle – January 22, 2021
A recent pivot in SCOTUS decisions on emergency orders signals a potential end to judicial patience with a never-ending “temporary” state of emergency.


Title Insurance Case Law Survey, Part 1
By Jerel J. Hill – November 20, 2020
Insured v. insurer, policy terms, who and what is insured, exclusions and exceptions

Following Trend, Federal Judge in Georgia Dismisses COVID-19 Business Interruption Claim
By David J. Marmins and Rebecca Lunceford Kolb – November 6, 2020
Shuttering your business is not a “physical loss or damage.”

Agents Lose First Major Ruling over Fees from PPP Lenders
By David J. Marmins and Morgan E. M. Harrison – August 25, 2020
United States District Court for the Northern District of Florida rules that lenders are not required to pay agent’s fees under the CARES Act absent an agreement to do so.

Big Win for Business Interruption Policyholders as Courts Start Issuing COVID-19 Decisions
By David J. Marmins and Rebecca Lunceford Kolb – August 14, 2020
Under a ruling out of Missouri, demonstrating that the virus has a physical presence and that it caused deprivation at the property would be sufficient to invoke coverage.

Constitutional Implications of COVID-19 and Its Impact on Property Rights and Personal Liberties
By Anthony F. DellaPelle – July 22, 2020
Our battle with the pandemic is fluid, presenting issues that evolve and change with each day that passes.

The Complex Art of Valuing Commercial Real Estate During a Pandemic and Cyclical Downturns
By Stephanie Dubicki and Charles DiRocco – July 20, 2020
Appraisers and valuation teams should be prepared to take into account volatile market changes and account for lags in relevant data to provide the most accurate valuations possible during this time.

A “Facial Challenge”: New York Residential Landlords’ First Constitutional Complaint against COVID-19 Laws
By Ali Dehghan – July 15, 2020
The U.S. District Court for the S.D.N.Y. rejected the argument that Gov. Cuomo's second eviction moratorium violated the Contracts Clause, Takings Clause, Due Process Clause, and Petition Clause.

Does New York Care More than the CARES Act?
By Ali Dehghan – June 24, 2020
A review of COVID-19 eviction law in the Empire State.

Thinking Historically during Litigation: A Case Study
By Andrew M. Toft – May 29, 2020
Two Maine Supreme Court cases illustrate that history matters, and real estate litigators should take heed.

A Bloody Problem: Free Speech and Private Property Rights Collide in California
By Nancy J. Newman – April 14, 2020
A recent case upends the legal landscape for shopping centers seeking to keep their properties free of gruesome images. This resulting conflict in First Amendment and private property rights calls for new legal strategies.

Is That a Penalty? Or Is It Just Rent?
By Kenneth Van Vleck – March 23, 2020
Pre-printed commercial lease holdover rent at 150 percent upheld on appeal.

COVID-19 and the Retail Industry: Is the Coronavirus a Force Majeure that Excuses Performance of a Lease?
By David J. Marmins – March 18, 2020
Social distancing and self-quarantining is causing extreme uncertainty among retail tenants and shopping center landlords.

Is the Coronavirus a Force Majeure that Excuses Performance of a Contract?
By David J. Marmins – March 18, 2020
The COVID-19 crisis brings up many questions, but with vigilant adherence to their contracts and applicable law, parties can navigate these troubled waters successfully.

Boilerplate Pitfalls in Real Estate Contracts and How Courts Interpret Boilerplate Provisions
By Gregory D. Call, Michelle D. Gambino, Howard K. Jeruchimowitz, Marianne L. Simonini, and Paul F. Stibbe – March 9, 2020
The importance of careful review cannot be overstated.

Why You Should Consider Hiring a Historic Preservation Expert as Early as Possible
By Grace Hearn – March 2, 2020
As all good attorneys know, the answer to many legal questions begins with “it depends.” Historic preservation is no different.


Is Hemp the New "Flower" of Texas?
By Karen L. Hart – December 20, 2019
A quick guide to hemp laws in the Lone Star State.

The Final Saga of the Winn-Dixie Exclusive
By Howard K. Jeruchimowitz – December 12, 2019
A long time ago in grocery stores far, far away, Winn-Dixie sought to enforce a grocery exclusive, but after two trips to the Eleventh Circuit, was the battle worth it, and has peace been restored to the exclusives galaxy?

The Dangers of Decanting
By Thomas J. McIntyre – May 22, 2019
Early cases indicate that trust decanting eliminating or reducing beneficial interests will be closely scrutinized and could be invalidated.

Certificates of Insurance and the Additional-Insured Trap
By Kenneth R. Van Vleck, Esq. – May 6, 2019
If you have a great client, with an on-the-ball staff who ties up every loose end, then you’re fine. But in reality, not every client is quite that dogged and on point.

Tips for Navigating the Complex Web of Shopping Mall Real Estate Agreements
By David J. Marmins and  Lindsey E. Hughes– May 6, 2019
Now more than ever, it is vital that a real estate lawyer understand the agreements that govern the operation of these properties to avoid costly and time-consuming litigation.

Someone’s Always Watching: Mitigating Enforcement Risk from Citizen Monitoring and Crowdsourced Data
By Bina Reddy and Matt Schneider – April 25, 2019
Property owners with environmental compliance requirements must increasingly be aware of what sensor technology is available and how it can be utilized.

10 Practical Considerations in Deposing an Expert Real Estate Appraiser
By Kevin H. Brogan, Esq. – March 21, 2019
How to make your cross-examination more effective and possibly even entertaining for the court, jury, or both.

Justice Kavanaugh Could Be Key Vote in Inverse Condemnation Case after Reargument Ordered
By Joe Willis – January 31, 2019
The case involves the search of a property for any evidence of old gravesites.


The Continuing Saga of the Winn-Dixie Exclusive
By Howard K. Jeruchimowitz – October 15, 2018
Going on its sixth year and two trips to the Eleventh Circuit Court of Appeals, the case of Winn-Dixie Stores, Inc. v. Dolgencorp has demonstrated how difficult it is to define and enforce an exclusive especially one not well defined in the lease itself.

Interstate Water Dispute Nears Decision by Supreme Court
By Austin Anderson – June 8, 2018
The case has important practical implications for the environments and economies of both states, as well as potentially sweeping legal ramifications for interstate water apportionment disputes in general.

How a Shopping Mall Property Group Finally Stopped Retail Stores from Closing
By David J. Marmins – January 11, 2018
An Indiana judge has made an unprecedented decision to force Starbucks' subsidiary Teavana to continue operating stores it intended to close prior to the end of the terms of its leases.


Is There a Compensable Taking When a Dam Release Causes Billions of Dollars in Damages?
By Justin A. Hodge and Ashley M. Croswell – December 22, 2017
Homeowners allege that the government, in causing flooding to homes post-hurricane Harvey from the Addicks and Barker dams, took their property under the Fifth Amendment.

“Prime” Shopping Center Real Estate: Exclusive-Use Restrictions in an E-Commerce World
By Kimberly D. Annello – December 18, 2017
The potential fact and legal issues that may crop up in litigation of acceleration clauses make them a challenge for summary judgment and trial.

5 Practical Tips from a Fourth-Year Litigation Associate
By Robert K. Hopkins – November 16, 2017
For young litigators, there is a lot to learn and, more importantly, to master.

RLUIPA and Islamic Society of Basking Ridge v. Township of Bernards: Defining and Protecting the Intersection of Property Law and Religious Freedom for All Faiths
By Steven W. Dimitt, Esq., Michael L. Knapek, Esq., and Maggie Burreson – July 31, 2017
Under RLUIPA, when a planning board interprets "church" as "Christian church" for the purposes of onsite parking requirements, strict liability applies.

Cash and the Residential Property Purchase: A New Paradigm
By Jason C. Bergman – May 30, 2017
Practitioners should be aware of significant new disclosure requirements regarding buyer identity and the source of acquisition funds.

Oral Argument in Murr v. Wisconsin: Catnip for Real Estate Litigators
By Nicholas P. Shapiro – April 28, 2017
As a means of thinking about and analyzing the nature of property, oral argument in this SCOTUS case is a must-listen-to piece of U.S. real property law history.

Environmental Due Diligence Complacency Can Spell Disaster
By Cynthia Bishop – March 22, 2017
Don't let your deal become the next Love Canal.

Environmental and Eminent Domain Impediments to a “Great, Great” Border Wall
By Lauren A. Ferrigni – March 20, 2017
An overview of potential legal considerations of President Trump's controversial order.

Taylor v. Martha’s Vineyard Land Bank Commission: Old Habits Die Hard
By Nicholas P. Shapiro – February 2, 2017
Rightly or wrongly decided, this Massachusetts case poses one primary benefit: clarity.

The Strange (Property Tax) World of Leasehold Communities and Equitable Ownership
By Ralph H. Schofield Jr. – January 4, 2017
Several cases in Florida have shown these lessees attempting to avoid ownership in order not to pay ad valorem real estate taxes.

Hawaii Court of Appeals Draws a Bright Line in Eminent Domain
By Robert H. Thomas – January 4, 2017
In larger parcel analysis, unity of contiguity means parcels must touch.

Beware the Enforceability of Arbitration Clauses in Wills and Trusts
By Joseph D. Kropp – January 4, 2017
The arguments for and against enforcement, and recent cases.

Tips to Ensure the Acceleration Clause in Your Lease Is Enforceable
By Karen L. Hart and Saba F. Syed – January 4, 2017
The potential fact and legal issues that may crop up in litigation of acceleration clauses make them a challenge for summary judgment and trial.


Claim and Issue Preclusion Do Not Protect Tenants from Joint and Several Liability
By Kenneth R. Van Vleck – February 10, 2016
A recent case left the California Supreme Court wondering: Was this really necessary?

What Texas Property Owners Need to Know about Open Carry
By Karen L. Hart – February 10, 2016
Lone Star State tenants and owners are faced with a new set of legal and ethical concerns and considerations.

Tips for Negotiating Environmental Risk Allocation Provisions in Leases for Non-Environmentally Sensitive Properties
By Maryam F. Mujahid – February 10, 2016
The California Court of Appeal weighs in the issue in regard to retail leases.

Tips for Real Estate Expert Selection and Strategy
By Del H. Kendall – February 10, 2016
An expert's suggestions on selecting the best real estate valuation expert for your case.


Eviction: Not the End of the Road for Landlords and Tenants
By Karen L. Hart – May 20, 2015
Given the limited scope of proceedings, all parties must be aware that a suit may only be one part of the process in lease litigation.

Nebraska Court Upholds Eminent Domain, Facilitating Keystone Pipeline Development
By Patrick Gallagher – May 20, 2015
But the fate of the controversial pipeline is still uncertain in the Cornhusker State.

Enforceability of Cotenancy Clauses: Remedy or Penalty?
By Howard Jeruchimowitz – May 20, 2015
The California Court of Appeal weighs in the issue in regard to retail leases.

Texas's Yellow-Brick Road to Acquiring Common-Carrier Status
By Justin Hodge and Ayla Syed – July 7, 2015
A recent case in the Lone Star State presents a more stringent barrier to oil companies seeking eminent domain powers.

Saddle Up with New Eviction Rules in Texas Justice Courts
By Karen L. Hart – June 1, 2015
Learn why justice courts in Texas are different from the "big" courts.


Can the City of Los Angeles “Take” the Clippers?
By Anthony F. DellaPelle – September 3, 2014
Should City of Angels taxpayers be forced to ante up billions of dollars to take a sports team?

Learning to “Speak” Real Estate in Depositions or at Trial
By Susan Nettles Han and Ginny Willcox – September 3, 2014
Vague descriptions can render testimony less effective for preserving the record.

Rate Hikes and Litigation: Changes to Federal Flood Insurance Program
By Andrew M. Lieb – September 3, 2014
Deadlines for the Homeowner Flood Insurance Affordability Act raise the specter of litigation.

The Ability-to-Repay Rule: New Causes of Action, New Defenses, and Securitization
By Lisa D. Liebherr – September 3, 2014
An eight-factor analysis of prospective income is a necessarily subjective analysis, which has the potential for significant future litigation.

The Clash of Retail Titans: Winn-Dixie v. Dolgencorp
By David J. Marmins – September 3, 2014
A circuit court gives new life to the supermarket chain's claims against three discount competitors.

Preparing for Your First Appellate Oral Argument: A Practical Primer
By Nicholas P. Shapiro – September 3, 2014
One thing judges hate is a lack of preparedness.

To Ban or Not to Ban? The Fight over Fracking Intensifies
By Phelps T. Turner – September 3, 2014
Regulatory frameworks for fracking are the subject of intense debate in nearly half the United States.

Can Condemnation by Injunction by Gas Companies Be More Broadly Applied?
By Alan Windham and Ben Bryant – September 3, 2014
Condemning authorities are increasingly turning to the preliminary injunction process to immediately possess properties they seek to condemn.

Can Condemnation by Injunction by Gas Companies Be More Broadly Applied?
By Alan Windham and Ben Bryant – September 3, 2014
Condemning authorities are increasingly turning to the preliminary injunction process to immediately possess properties they seek to condemn.

The Real Estate Industry Must Be Cautious with Social Media
By Katherine F. Cser – August 20, 2014
Accessing an applicant's online presence could get a lender or agent in legal trouble.

More Flexible Easement Relocations Post-M.P.M. Builders Case
By Nicholas P. Shapiro – February 13, 2014
The decision has provided useful tools for solving real estate disputes in Massachusetts.

The Intersection of Pet Policies and Anti-Discrimination Laws in Real Estate
By Andrew M. Lieb – January 20, 2014
When this mixture is neglected, disputes about dogs, cats, and other creatures often land in court.

Seventh Circuit Takes a Second Look at Its Decision on CERCLA Liability after EPA Settlement
By Jessica Wall and Travis Godwin – January 20, 2014
The court added yet more wrinkles to this already crag-filled area of the law.

NY Department of State Tightens Rules on Titles for Real Estate Agents
By John A. Snyder and Michael Taxin – January 20, 2014
The change combats misleading language used by the Empire State's real estate agents.

Phase I Standard Gets a Facelift
By Samantha Corson and Kyle Johnson – January 20, 2014
The update aims to return reliability and continuity to real estate transactions.

Mind the Gap Between Market Value and Expected Proceeds for Distressed Commercial Real Estate
By Scott Fowler, Trevor Phillips, and Steven Laposa – January 20, 2014
The warning applies to those purchasing distressed commercial real estate.