Real Estate, Condemnation & Trust

Practice Points

What you need to know in a quick-to-read format. Find all of the Real Estate, Condemnation, and Trust Litigation Committee’s Practice Points in this archive.


Should a Residential Construction Agreement Contain an Arbitration Provision?
By Kenneth R. Van Vleck – April 21, 2021
In residential construction, the choice is not always clear.

Zoning and Land-Use Attorneys: Mind Your Nomenclature!
By Nicholas Shapiro – March 3, 2021
A footnote in a recent decision from the Massachusetts Appeals Court reminds the bar of the racist roots of the term “grandfather” protection.

New York Court Rules that Pandemic Orders Are a “Casualty”
By Ali Dehghan – February 25, 2021
An injunction and a declaratory judgment were granted, protecting a restaurant from eviction for nonpayment of rent.

Policyholders Notch a Win in the Fight for COVID-19 Insurance Coverage
By Rebecca Lunceford Kolb and David J. Marmins – January 27, 2021
The case involves an Ohio-based restaurant system that argued it was entitled to business interruption coverage caused by the pandemic.


A Force Majeure Clause in a Commercial Lease Did Not Excuse Timely Payment of Rent
By Ali Dehghan – December 9, 2020
Commercial tenants should think twice before entering into leases that affirmatively bar rent abatements.

How Can Real Estate Litigation Attorneys Help Diverse Communities?
By Paul Stibbe – August 13, 2020
A few tips beyond donating money, from pro bono services supporting low-income tenants to representing small businesses owned by people of color.

COVID-19 Meets Commercial Landlord-Tenant Law
By Andrew M. Toft – July 28, 2020
Do executive orders and public health orders relieve commercial tenants of obligations under a lease? Or, how I learned to stop worrying and love the force majeure clause.

COVID-19 Has Resulted in Some Awkward Separation of Powers Issues
By Nicholas P. Shapiro – July 21, 2020
The pandemic is a bottomless pit for real estate attorneys.

Illinois Bankruptcy Court Grants Force Majeure Relief to Restaurant
By David J. Marmins and Michael F. Holbein – June 29, 2020
The court made a preliminary finding that the restaurant must pay only 25 percent of its rent.

Title Insurer Has Satisfied Its Duty to Indemnify When Insured’s Title Is Established by the Company
By Jason A. Ganfer – May 14, 2020
Lessons learned from a recent Nassau County Supreme Court case.

In a Wyoming Trust Case, State Supreme Court Says No Special Treatment for Kids
By Brooks L. Robinson – January 29, 2020
In terrorem clause upheld, eliminating minor beneficiary’s interest after parent challenges trust.

New Order May Increase Interest in Renewable Energy Projects in Arizona
By Michelle De Blasi – January 29, 2020
The order is also consistent with policies adopted in other states, including Wyoming,  Utah, and Oregon.

Tips for Arbitration Clauses in Leases: Use With Caution
By Julia Emfinger – January 15, 2020
Parties to a lease, particularly a commercial lease, should be mindful of when such clauses can be helpful.  


Emerging Disfavored Discovery Practice: General and Boilerplate Objections
By Julia Emfinger – September 23, 2019
It may be time to reinvent objections in the context of written discovery.   

How to Avoid Issues When a Lender Satisfies a Mortgage that was Previously Assigned
By Jason Bergman – June 24, 2019
It is a question that should not have to be posed, but it is a surprisingly commonplace problem.   

Marijuana-Related Businesses Pose Legal Issues for Those Seeking Title Insurance
By Jason Bergman – May 22, 2019
It is critical to understand your insurance options and speak with your title insurance professional at the inception of the transaction.   

New York Supreme Court Bolsters Viewpoint That Green Energy Initiatives Are Not Taxable as Land Improvements
By Paul F. Stibbe – May 13, 2019
The decision has important implications for clean power development and green initiatives.   

The Importance of Complying with Statutory Formalities in Non-Judicial Foreclosures and Preserving Objections
By Julianna M. Charpentier, Esq. – April 25, 2019
For lenders claiming possession of a property by virtue of a foreclosure deed, rather than through a judicial foreclosure, it's important to go back to basics.  

A Quick Guide to Leasing to a Marijuana-Related Business
By Stanley S. Jutkowitz – February 28, 2019
It is important for both parties to be represented by counsel well versed in local, state and federal laws for the parties to have a successful long-term relationship.  

Top Five Lessons from My First Jury Trial
By Saba F. Syed – February 25, 2019
An associate’s takeaways from a four-year case involving parties from two continents and 400 filings.

Experiences in Addressing Public Health Ramifications of Septic System Failures
By Ralph Schofield – February 25, 2019
Lessons from the chief legal counsel of the Florida Department of Health.

Extra Care Required When Amending a Trust to Affect Beneficial Interests
By Thomas J. McIntyre – January 16, 2019
Maryland high court reminds practitioners to look beyond the precise wording of certain provisions of a trust and view the entire trust instrument as a whole to discern the settlor’s intent.

Recent Yahoo Litigation Allows for Disclosure of Decedent’s Stored Communications
By Brendan E. McGough – January 16, 2019
You've got mail...maybe.


A Checklist for Insuring a Short Sale
By Jason Bergman – June 20, 2018
Short sales are not only nuanced but also quite onerous.


Checklist for Insuring a Deed-in-Lieu of Foreclosure
By Jason Bergman – November 27, 2017
A few tips, applicable in many jurisdictions, to make your next transaction easier.

Penn Central Has Officially Been Squared
By Nicholas P. Shapiro – October 31, 2017
The Supreme Court applies a multifactor test in Murr v. Wisconsin to determine the property taken by regulation.

Confidentiality of Tenant Litigation to Avoid Blacklisting
By Ralph H. Schofield, Jr. – May 23, 2017
Legislative activity in New Jersey may signal more legal protections for tenants from blacklisting and unfair retaliation by landlords.

Partial Victory for Miami in Housing Suit, but Hurdles Remain
By Patrick Gallagher – May 22, 2017
The city has standing to sue lenders for violations of the Fair Housing Act's antidiscrimination provisions.

Top 10 Tips for Civility and Professionalism for New Lawyers
By Danielle Andrews Long and Kendra L. Berardi – April 25, 2017
Learn how to go beyond simply adhering to the ethical rules in your jurisdiction.

Top 6 Tips for Communicating with Your Title Insurance Company
By Jason Bergman – April 25, 2017
Learn how to make correspondence with an underwriter less daunting.

When Is a Landlord Liable to a Tenant’s Contractors and Suppliers?
By C. Knox Withers – March 21, 2017
The answer depends on the law in the jurisdiction in which the property is located and the surrounding circumstances.

Tips for Handling an RLUIPA Lawsuit
By Michael Knapek and Steven Dimitt – March 17, 2017
As churches and religious organizations grow and expand, they may face opposition from the same community they intend to serve.

The Effect of Jesinoski v. Countrywide Home Loans, Inc. on Litigation under the Truth in Lending Act
By Justin E. Fine – February 27, 2017
One of the more popular contentions in this Supreme Court case is that it recognized an “automatic rescission” of certain loans upon delivery of a written rescission notice to the lender.

Supreme Court of Nebraska Provides Guidance on UTC Mandatory Duties of the Trustee and Effectiveness of Exculpatory Clauses
By Yara Kass-Gergi – February 27, 2017
The case is Rafert et al., v. Meyer.

Infrastructure Gets Top Billing from President Trump
By Fred Wagner – January 27, 2017
Despite some initial rumblings about more government spending, it seems likely that enough members of both parties could work with the White House to pass a major infrastructure initiative.

How to Avoid Commercial Lease Audit Litigation
By David Marmins and Sam Lyddan – January 11, 2017
Lease audits have become a fact of life in the commercial real estate industry.


Comparable-Sales Evidence in Condemnation Cases
By Neal J. Suit – November 20, 2016
What does “comparable” mean, anyway?

Traps for the Unwary: Is Your Guaranty Merely an Unenforceable Sham?
By Kenneth R. Van Vleck — October 31, 2016
Keeping these principles in mind when crafting your guaranty could protect your client from the sham guaranty defense down the road.

Tips for Evaluating the Impact of Required Dedications on Valuation in Eminent Domain Takings
By Kevin H. Brogan — October 31, 2016
Dedications can become thorny issues. Learn how to navigate them.

In a Multi-Court System, Beware of the Jurisdiction for Zoning Appeals
By Carson M. Shea — October 31, 2016
A cautionary tale from the Massachusetts Appeals Court.

A Comprehensive Permit Application Is Not Complete Without Full Payment of Filing Fee
By Denis F. Alia – September 30, 2016
How can a dispute over a mere filing fee result in a comprehensive permit application being denied?

No Abandonment of Rail Easement Without Federal Approval
By Patrick Gallagher – September 30, 2016
“Do not pass Go. Do not collect $200. Go directly to the federal Surface Transportation Board.”

Massachusetts High Court Allows Attorney’s Affidavit to Clear Technical Mortgage Defect
By Kendra L. Berardi – August 24, 2016
The case is Bank of America, N.A. v. Casey.

Update on Sabal Trail Pipeline Dispute: More Bad News for Landowners
By Anne Duvoisin Fisher – June 16, 2016
The Federal District Court for the Middle District of Florida gave short shrift to landowner arguments.

Pollution Exclusion Upheld for South Carolina Political Entities
By Katherine E. Stock – May 25, 2016
Appellate judge affirms circuit ruling in SC Tort Claims Act case.

Will Florida’s Sabal Trail Pipeline Project Reach the Supreme Court?
By Anne Duvoisin Fisher – May 16, 2016
The controversial project involves a 516-mile pipeline running from Alabama to south of Orlando.

Municipalities Cannot Ban or Impose Moratorium on Fracking, Says Top Colorado Court
By Richard F. Rodriguez – May 10, 2016
Two recent cases lead the charge in this controversial area.

Can't Buy Me Love?
By Kevin Brogan – April 30, 2016
Multimillion-dollar price tag for inverse condemnation judgment for Dallas Love Field says otherwise.

Should a Trustee Be Physically Present at the Auction Sale?
By Denis F. Alia – April 30, 2016
Developments in technology have raised this question.

If You Delay, You Shall Pay
By Daniel S. Rich – April 4, 2016
Hollywood, Florida, ordered to pay fees due to delaying environmental injunction hearing.

Major Development Project Appeals Cannot Go to MA Housing Court
By Marc J. Goldstein – March 29, 2016
Although its case is a win for developers generally, a Bay State developer could not secure the relief it hoped for.

A “Ruff” Guide to Emotional Support Animals in the Landlord-Tenant Context
By Daniel S. Rich – March 15, 2016
The old saying "a dog is a man's best friend" encompasses much of the methodology surrounding these laws.

Massachusetts Enacts Legislation to Cure Title Defects Caused by Ibanez and its Progeny
By Kendra L. Berardi – February 20, 2016
Governor Charlie Baker has signed Senate Bill No. S2015 into law.

Main Street v. Hackensack: A Signal of a Possible Revival of Urban Redevelopment in New Jersey?
By Anthony F. DellaPelle and Daniel Kim – January 26, 2016
The decision means that municipalities and developers will no longer have to second-guess the scope of the landmark Gallenthin decision.

Lord & Taylor Awarded $31 Million in Maryland Mall Lawsuit
By Howard K. Jeruchimowitz – January 26, 2016
The luxury retail giant argued that a landlord breached a stipulation in its 40-year lease.

OH Court of Appeals Provides Guidance on UTC Exculpatory Clauses and Statute of Limitations
By Janelle L. Peiczarka – January 26, 2016
The guidance comes in Newcomer v. National City Bank.