Condos and Co-Ops: Taking on the Secondhand Issue?

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When it comes to your housing, is prohibiting smoking in place? Many residential co-op and condo boards are finding that cigarette smoking regulations are a hot button issue. Whether they are able to impose bans on what residents are allowed to do in the privacy of their own home, and whether they should do so or pursue other ways to cut back on secondhand smoke affecting residents is another matter.

In the case of Reinhard v. Connaught Tower Corp., a decision by the New York Supreme Court dealt with a situation that concerned this issue.

The Connaught Tower Corp. was a Manhattan residential co-op that was home to plaintiff Susan Reinhard. She had bought an apartment there in 2006 and lodged a complaint about smelling cigarette smoke in her apartment in May 2007 after smelling it since January of the same year.

However, the board did not respond to her complaint. They denied that they were legally required to act on the issue. The board effectively informed Reinhard that she would have to alter the apartment if she wanted to take action against the second-hand smoke on her own dime. In response, she left her apartment and ended up suing Connaught Tower Corp. for complete maintenance abatement.

So who won? Well, Susan Reinhard was awarded $120,944.38 in six-year maintenance abatement and coverage of attorney’s fees and interest on the abatement at 9% per annum. This was reached due to her leaving the apartment, a considerable breach of the warranty of habitability, and a breach of proprietary lease.

The abatement awarded by Judge Engeron was based on the fact that the value of an apartment that is polluted with secondhand smoke is zero. The plaintiff had the burden of proving a breach of contract and did so, thus having the benefit of receiving bargain damage. She deserved the value that the apartment would have been if it had been smoke free.

Building owners can provide smoke free residences by saying that you cannot smoke in or outside of residences to be sure that tenants do not breathe in second hand smoke. Even co-op boards have the burden of reducing second hand smoke infiltration into the building or being smoked at all. However, a trial court decision may not be replicated in other states and until reversed has effectively set a precedent.

While it’s not set whether these decisions will impact condos, building owners can help themselves out either by instituting no smoking policies or adapting the apartments so smoke does not seep into other residences. Since bans are more affordable than full-scale remodels, it’s foreseeable that action could take the form of restricting smoking on the property. Boards may only have to address the issue, however, when someone complains about the condition, and perhaps not even then.

Buildings must get rid of the secondhand smoke issue one way or another to avoid legal liability. Whether it’s banning smoking on the residence or amending laws or documents or putting the burden on the smokers, action must be taken to address smoking complaints by tenants. Non-compliance may result in proceedings or the levying of fines. Every co-op and condo is different, but smoking may be the next thing to go to avoid legal liability in both.

Civil Litigation Cases 101

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When it comes to civil litigation cases, are you up to date? A civil litigation is the result of two or more parties that are involved in a legal dispute and are seeking something other than criminal sanctions, such as money. In these types of cases, they must be tried in a courtroom and a judge or jury will weigh in on the matter and ultimately decide the result. Read on to find out more about these types of cases.

Civil litigation cases are specialized in by civil litigation attorneys. A civil litigation attorney is also known as a trial lawyer and will represent clients in many types of proceedings including depositions and pretrial hearings. They may also represent clients during processes like mediation or arbitration, where the goal is to have both parties reach a settlement so that they do not have to deal with going to court.

These cases and the litigation can be about many subjects and areas, so litigators frequently specialize in one or more areas. These could include personal injury claims, intellectual property disputes, environmental law, workers’ compensation claims, product liability disputes, landlord and tenant disputes, education law disputes, divorce suits, workers’ compensation claims, and more. The litigation essentially deals with cases that do not involve criminal charges or penalties.

The litigator have many responsibilities. First and foremost is to represent their client and fight on their behalf. They must be comfortable with conflict and fighting against the opposition. They must work to get the best possible outcome for this client and do everything they can to fight for their client. It can be a tough job, demanding a lot from individuals in the field. They frequently work long hours and put a lot of energy into their cases. Litigators have the weight of getting their client the result they need.

You must also have certain skills and a background of knowledge in the field (including experience from cases) to be a great litigator. These attorneys must have logical and analytical reasoning abilities, interpersonal skills, intelligence, knowledge of procedural/substantive law, know how to research, work with clients, negotiate, and argue a case successfully in order to benefit their client.

What goes on during civil litigation? There are several stages to any case. These include investigation, the pleadings, and later on discovery, pretrial, settlement/trial, and possibly appeal. The longest stage is discovery, which takes far more time than trials in most cases because so much effort is put into getting information that is relevant to the case (along with the necessary subpoenas, depositions, and interrogatories). Subpoenas may help get documents or information, while the depositions and interrogatories involve getting information through questioning under threat of perjury. Questions are posed orally in depositions, whereas the interrogatories involve written questions.

While many suits go through every stages, many are settled before even seeing the light of a courtroom. Parties may even decide to settle during a trial, where they can settle some aspects of the suit. Cases that do go to trial can be months or years. If you are going to be involved in a civil litigation case, be sure to have a reliable litigation attorney on your side because it will make a difference.

All About Intellectual Property Law

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When it comes to Intellectual Property Law, do you know your stuff? This is a law that outlines the rules when it comes to getting and enforcing the legal right to a variety of things such as art, design, inventions, and more. That’s because laws protect personal property, real estate, and also intangible assets and their control.

If you have questions about this law or just want to know more, consult an intellectual property attorney. They’ll be able to tell you more about the subject and advise you on specific instances. However, if you want a quick crash course on the issue for free before going in, read on to find out more!

Intellectual Property Law protects individuals that want to profit from their work. It encourages innovation as it gives people a way to profit without their ideas being misappropriated by others. According to the U.S. Constitution in Article 1 and Section 8, they can give Congress the express authority to give individuals rights that are exclusive to their creations and regulate commerce through states and abroad. These laws are looked over by the U.S. Copyright Office and the U.S. Patent and Trademark Office.

The existence of patents also gives people who invent things the right to profit by either selling their product or selling that right to someone else. The patents will be valid for up to 20 years and a surprising variety of items qualify such as manufactured goods and new machines. A patent will be awarded if an invention is not found unuseful, offensive, or to contain obvious design. The trademarks will also protect slogans, symbols and names to not only avoid confusion but prevent misleading advertising by distinguishing their rights.

The copyrights also apply to a variety of artistic and intellectual expression. It could be music, architecture, movies, writing, inventions and machines and more. Creating work creates copyright. You can use a symbol and a date for copyright, but it is not required. Copyrights are good for a surprisingly long time– the lifetime of the creator, with seventy years added on.

So, what is infringement? This term refers to use that is unauthorized when it comes to intellectual property. Owners should notify others of rights to protect against infringement by clearly alerting someone to your rights. It also helps legally, because if you have notified someone of your intellectual property, then you will have a stronger case when prosecuting an infringement if the case makes it to court. They can do this by marking a product using the Patent and Trademark Office assigned number. Patent pending can also prevent others from getting a patent on a copied or similar design before the patent is received. Marks are added to material and the mark is registered and added to the government database.

What should you do if infringement does happen? Well, your right to intellectual property will be enforced in court if you choose to file. Before you file, you should meet with an attorney and see what your legal options are. You should also give considerable thought to the process and whether that is the way you want to go. These cases are after all expensive to prosecute and the rights will not be as extensive as thought. However, if you want to give it a shot, consult an experienced attorney and see what they have to say about your situation.

What can you do if you are sued by someone who claims to own intellectual property? You still have some options. If they successfully sue you, you do have options. A court may order an injunction, or you may be found to owe someone damages. It all depends on whether owner’s rights are established and other details. A license agreement will also allow property use to go on with payments to the rightful owner of it.

At the end of the day, fighting for your property rights can make you some money. Claims of infringement have also bankrupted companies, so there’s a lot at stake. Talking to an attorney that specializes in this law may be your best bet regardless of whether you’re trying to establish your rights or defend and profit from them. If you have rights to protect, have been accused of infringement, or just need to know more, consult an intellectual property attorney today and find out everything you need to know.

5 Real Estate Laws That Real Estate Owners Need to Know 

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When it comes to commercial real estate law, there’s a lot to take in. With so many laws that exist on the books for federal, state, and local laws, it can be pretty confusing. Commercial real estate laws can be so befuddling and complicated that at the end of the day, you really require a lawyer to help you sort through everything. The average person isn’t going to know the ins and outs of the laws on real estate, and when it comes to real estate, when you’ve got money and time invested you really don’t want to get it wrong.

Real estate owners, take note: real estate lawyers can help advise you and get you on the right track when it comes to law. In the meantime, here are five issues in the area of real estate that owners should be informed about.

1. Landlord and Tenant Laws

These change a great deal depending on the state they are relevant to. In many cases, the law may be confusing, so you may need to consult a lawyer to know your rights. These laws may have clauses that relate to such topics as disclosures, rights to privacy, taxation, termination of tenancies, paying rent, and more. If you have a question as an owner about anything regarding tenants, consult a lawyer and you’ll soon have a greater understanding of how to approach the situation and what your rights are.

2. Disclosure Laws

These types of laws relate to the location of a property, as well as the shape it’s in and the restrictions that are placed on the property. This is to clearly outline the expectations and principles so that renters have a structure they can read, digest, and agree to. Owners must disclose if they have any aspects of this property as well, such as toxic substances in the building. These laws vary according to where you live.

3. Zoning/Land Use Laws

These laws relate to how regulations of land use and zoning are established and enforced. They basically say how a property can be used, and if you’re not sure if you can operate the way you want to, you may have to see a lawyer to figure it out or risk losing thousands. Not only that, but you can be shut down if property rights are stepped over, so it’s good to be clear on this issue. Owners may also have to apply for changes to the zoning processes and be approved, which can get tricky. Either way, you want to know what you’re dealing with before renting or leasing space for a business.

4. Contract Law
Binding contracts are accepted by both properties, but they also have to be spelled out very specifically in order to stand up to challenges they have. Most of the contracts drawn up in America will be under the U.C.C., or the Uniform Commercial Code. Real estate sales and contracts are usually under the Common Law of Contracts. Again, a qualified real estate lawyer will be able to answer any questions that you may have when it comes to contract law.


5. Insurance Laws
Insurance is very important when it comes to businesses and homes. They’re doubly important when it comes to commercial property. Having this type of insurance will cover the property and incidents that may occur on your property, but most of it is not going to protect a tenant of their property. They’ll need to have insurance of their own to help cover them in certain states. A lawyer is going to be huge on this one because you really need someone who is familiar with the variables and concerns when it comes to insurance law, especially when it comes to buildings and real estate.

Conclusion

When it comes to being a real estate owner, there can seem like there’s no end to what you have to deal with. Unfortunately, this can sometimes include the law. Laws come into play when it comes to real estate all of the time. Occasionally you may be able to navigate a problem on your own, but sometimes seeking legal advice is the best thing you can do. With so much invested already as a potential or established owner, don’t leave things up to gray area– seek advice from established attorneys today.

Board Business Through a Legal Lens

There are many problems that co-op and condo boards have to deal with that are messy, personal, and time consuming. These often involve quality of life or resident issues where the board is forced to take a stand – either against resident behavior or as a motivator for some type of change.

Watch Ken Jacobs give a lesson on Sexual Harassment featured in the HabitatU course Board Business Through a Legal Lens.

 

Court of Appeals Upholds Contractual Limitation on Co-op Board’s Power to Deny Transfer Applications

In most instances, decisions of a cooperative board are reviewed by courts under the business judgment rule. The business judgment rule provides that a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. But where a provision of a proprietary lease provides that the cooperative board’s consent “shall not be unreasonably withheld,” the board cannot justify its refusal to provide consent simply by arguing that it exercised “business judgment” in reaching its determination. Rather, the board must specify its objections and lay them open to scrutiny before the court.

By its December 20, 2016 decision in Estate of Helen Del Terzo, Michael Del Terzo and Robert Julius Del Terzo v. 33 Fifth Avenue Owners, Corp. __ N.E.3d __ (2016), the Court of Appeals affirmed this concept by holding that a board’s denial of a transfer application breached the controlling provision within the subject proprietary lease, which provided that a transfer from a deceased shareholder’s estate to a financially responsible family member “shall not be unreasonably withheld.”

The Estate of Helen Del Terzo sought to transfer shares allocated to two apartments within the building and the related proprietary lease to the sons of the deceased shareholder, Michael and Robert Del Terzo. The board denied the application even though its president admitted that the Del Terzo family had been good citizens in the building community for almost 60 years; that the family had never been late for even one maintenance payment; and that Michael, a wealthy doctor, was financially responsible.

The board sought to justify the denial on the ground that Robert was not financially qualified and that Michael’s continued residence in Pennsylvania would violate the board’s policy that apartments be owner-occupied. However, those justifications were unreasonable because the board did not respond to Michael’s written offer to guarantee Robert’s financial obligations under the lease; Michael and Robert would be jointly and severally liable for all financial obligations under the terms of the lease; and the board regularly allowed shareholders to sublease their apartments in violation of the board’s owner-occupancy policy.

Smith, Buss & Jacobs commenced an action on behalf of the Del Terzo family against the cooperative in Supreme Court, New York County alleging that the board’s denial of the transfer application was a breach of the proprietary lease. The trial court granted summary judgment to the family holding that the board’s denial of the application was unreasonable, and issued a judgment directing the board to approve it. The cooperative appealed. By a 3-2 decision, the Appellate Division, First Department affirmed, and additionally ruled that the cooperative was liable to the Estate for the attorneys’ fees the Estate had incurred in the dispute under a provision within the proprietary lease. The Court of Appeals unanimously affirmed the First Department’s decision.

The Court of Appeals’ decision makes it crystal clear that where a provision within a proprietary lease requires a board to act “reasonably,” the board must identify viable reasons that support its decision in the event the decision is challenged in court.

SBJ And Jack Malley Obtain Unanimous First Impression Decision From The Court of Appeals Regarding A Co-op Board’s Duty To Act Reasonably Where The Proprietary Lease So Provides

In most instances, decisions of a cooperative board are reviewed by courts under the business judgment rule. The business judgment rule provides that a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. But where a provision of a proprietary lease provides that the cooperative board’s consent “shall not be unreasonably withheld,” the board cannot justify its refusal to provide consent simply by arguing that it exercised “business judgment” in reaching its determination. Rather, the board must specify its objections and lay them open to scrutiny before the court.

By its December 20, 2016 decision in Estate of Helen Del Terzo, Michael Del Terzo and Robert Julius Del Terzo v. 33 Fifth Avenue Owners, Corp. __ N.E.3d __ (2016), the Court of Appeals affirmed this concept by holding that a board’s denial of a transfer application breached the controlling provision within the subject proprietary lease, which provided that a transfer from a deceased shareholder’s estate to a financially responsible family member “shall not be unreasonably withheld.”

The Estate of Helen Del Terzo sought to transfer shares allocated to two apartments within the building and the related proprietary lease to the sons of the deceased shareholder, Michael and Robert Del Terzo. The board denied the application even though its president admitted that the Del Terzo family had been good citizens in the building community for almost 60 years; that the family had never been late for even one maintenance payment; and that Michael, a wealthy doctor, was financially responsible.

The board sought to justify the denial on the ground that Robert was not financially qualified and that Michael’s continued residence in Pennsylvania would violate the board’s policy that apartments be owner-occupied. However, those justifications were unreasonable because the board did not respond to Michael’s written offer to guarantee Robert’s financial obligations under the lease; Michael and Robert would be jointly and severally liable for all financial obligations under the terms of the lease; and the board regularly allowed shareholders to sublease their apartments in violation of the board’s owner-occupancy policy.

Smith, Buss & Jacobs commenced an action on behalf of the Del Terzo family against the cooperative in Supreme Court, New York County alleging that the board’s denial of the transfer application was a breach of the proprietary lease. The trial court granted summary judgment to the family holding that the board’s denial of the application was unreasonable, and issued a judgment directing the board to approve it. The cooperative appealed. By a 3-2 decision, the Appellate Division, First Department affirmed, and additionally ruled that the cooperative was liable to the Estate for the attorneys’ fees the Estate had incurred in the dispute under a provision within the proprietary lease. The Court of Appeals unanimously affirmed the First Department’s decision.

The Court of Appeals’ decision makes it crystal clear that where a provision within a proprietary lease requires a board to act “reasonably,” the board must identify viable reasons that support its decision in the event the decision is challenged in court.

What to Do When You Need a Lawyer as an Employer 

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Employment law is always changing. Unfortunately, that means that you’re going to have a harder time trying to understand laws on your own. Governments and courts constantly interpret the laws in different ways, so even when you think you have a good grasp of the law there is usually a precedent that has been set that makes everything more difficult. When you start to understand that even a weak case that is made strongly can result in damages awards and potentially bankrupt you, you see why taking legal action and hiring good defensive help is so necessary.

While you don’t necessarily have to talk to a lawyer for the small stuff, you should definitely consult one for the big stuff. So when do you know when a situation calls for a legal consultation and when it doesn’t? That can be a tough call. We’re going to run over the biggest topics that often require you to call an attorney.

 

Firing An Employee

A lawyer can be helpful when you need advice prior to firing an employee. No matter if there’s a legitimate reason, your lawyer will be able to tell you whether you are able to legally fire the employee and what you can do in order to avoid a suit from that disgruntled employee. If they have a contract that is written or oral, you may not be able to fire them. If they have retirement, stocks, or benefits that are going to vest soon, they may sue.

If they have filed a complaint, recently or otherwise, specifically for harassment or discrimination, they are in a protected class, you are worried about what they might do, they have access to documents, trade secrets, or documents, excessive absence, they deny responsibility, have hired a lawyer, or belong to a classified position, you should likely consult your lawyer. Don’t forget that if you are firing multiple workers, changing pension plans, or firing an employee that will really affect the workforce, consult your lawyer first to avoid making classic mistakes.


Being Sued

If you are currently being sued by an employee, you need to talk to a lawyer as quickly as possible. These suits can not only be difficult, you are going to have the burden of taking action to make sure that you are protected, the business is protected, and you have counter evidence. Why is this so important? Well, there is only so large a window of time to work within. You have to act quickly and file a legal response to a suit within weeks, so consult a lawyer the second you learn you are being sued.

Complaints

Employees sometimes bring complaints instead of a lawsuit. These too can be tricky. The reasons can vary– harassment or retaliation claims, even discrimination, are common. These complaints will be filed with an employment board or state agency, or even get a hearing. You need to consult a lawyer for these complaints in order to understand what your options are going forward.


Contracts and Agreements

Lawyers need to go over agreements that you have made with employees. This includes all employment contracts as well as any release, severance agreements, or agreements of any kind. They’ll also go over your contract and evaluate everything, checking the legal language and terms to see what might be court enforceable.

At the end of the day, you don’t want to be left defenseless legally. Leaving yourself in the dark can have its own share of complications– it’s best to act quickly, especially when you’re already being sued. Consult a reliable attorney today and get the qualified consultation that you deserve so you are in the know. That’s what they do best, so let an experienced attorney review the information and advise you on how best to move forward. You’ll be glad you did.

 

The Yellowstone Injunction, a Practical Application

Many commercial landlords and tenants are readily familiar with the term “Yellowstone injunction,” which enjoins a landlord’s termination of the subject lease until a lawsuit commenced by the tenant determines the merits of the alleged default. To obtain a Yellowstone injunction, a tenant must demonstrate that: (1) it holds a lease, (2) the landlord served a notice to cure, (3) the tenant sought the Yellowstone injunction prior to the expiration of the cure period, and (4) the tenant has the ability and desire to cure the alleged default. New York courts are inclined to grant Yellowstone injunction applications to avoid a forfeiture of a tenant’s interest in a valuable asset – a commercial lease. Tenants are best able to take advantage of this inclination by emphasizing its “ability and desire” to cure the alleged default.

This tendency was reinforced in the recent decision issued by Hon. Joan M. Kenney in Pureform Movement, LLC v. 2374 Concourse Associates, LLC, Index No. 150758/15 (Supreme Court, New York County Nov. 4, 2016). In Pureform, Landlord served a notice to cure on Tenant claiming that Tenant was in default of it lease obligation to obtain the approvals and permits needed to operate a fitness center within the rented space. Tenant submitted an application for a Yellowstone injunction prior to the expiration of the cure period supported by affidavits demonstrating that Tenant had provided Landlord with detailed drawings and plans for the work needed to obtain the required approvals and permits. In opposition, Landlord conceded that it had received Tenant’s drawings and plans, and focused on Tenant’s prior operation of a fitness center within the space for over two years without obtaining the necessary permits and approvals.

Judge Kenney granted the application based on her holding that Tenant “ha[d] shown that it was prepared and it has the ability to assist in curing the alleged defaults.” Thus, the application was granted because Tenant gave Judge Kenney the comfort that Tenant would cure the default if the Judge ultimately found in Landlord’s favor.

Practically speaking, where a tenant submits evidence demonstrating its ability and desire to cure the alleged default, as Tenant did in Pureform, the landlord is often best served seeking a settlement of the dispute to avoid the likely issuance of the injunction and the legal fees it will incur while the action proceeds for as much as 2-3 years with the injunction in place.