Personal Or General Misfortunes

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We’ve stolen our title from an article (or possibly it is a blog piece) dealing with the same concept but in a completely different field of endeavor. It wasn’t even about anything objective. But, its title and subject matter got us thinking about just what its author was discussing: that is “who should bear the risk?” We wrote about this a long time ago and, at the time, thought we had written a definitive piece on the subject. Now, we know we had not. Neither will be today’s posting. [For those intent on visiting the past, here’s a link to our 2013 rambling: LINK.]

Who deserves to lose when uncontrollable events present such an opportunity? We think few would argue that a tenant whose business goes south at all or most of its locations shouldn’t blame itself and should not blame any particular landlord. Similarly, if the neighborhood turns for the worst, and rental values fall, individual tenants are blameless when it comes to the landlord’s investment loss. But those examples aren’t entirely correct. [Read more…]

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Three Gems (Or So We Think)

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We’ve been doing Ruminations since 2011 and yet this is the first time we’ve deliberately done a multi-topic blog posting. Generally, when we choose a topic (400+ thus far) we dig in and treat(?) our readers to several pages of our ramblings. That approach has precluded our covering simple or easily contained topics, ones undeserving of deep drilling down. So, today, for the first time (but, perhaps not the last), we present a little of this and a little of that.

Overnight Delivery. In New York, service of lawsuit papers upon an attorney in a pending matter may be accomplished in a number of ways, including: [Read more…]

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Experience Matters: Words Have Meanings (And An Insurance Pointer)

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Last week, we wrote about the need for competence when it comes to crafting deal documents such as a lease. Among the over 400 Ruminations prior blog postings are more than a dozen dealing with insurance. This week, we get to combine the two subjects thanks to a December 5, 2018 unpublished ruling from a New Jersey appeals court resolving an insurance dispute. The facts are mundane, but provide a roadmap for us today.

A tenant’s employee “injured himself using a freight elevator inside the leased premises.” He sued the landlord for negligence. [The workers compensation law barred him from suing his employer, the tenant.] Relying on the lease’s indemnification provision, the landlord claimed back against the tenant. It also demanded that the tenant’s insurer honor the landlord’s status as an additional insured under the tenant’s liability policy. As will be seen, the appellate court made the landlord unhappy. To understand why we’ll start with the lease’s indemnification clause. It read as follows: [Read more…]

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Don’t Know How To Do It? Then, Don’t!

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Some concepts are so simple that we never think that we’d have to point them out. But, today, one of those concepts occurred to us, and we’d like to share it with our readers. Here it is:

If you are going to craft documents, be they leases, purchase agreements or ‘whatever,’ you should know what you are doing.

Experience can be a good teacher, if your experience is good. Bad experiences could be a good teacher as well if you learn (quickly and correctly) and especially if they were someone else’s bad experiences.

Today’s blog posting was triggered by a nearly year-old Maryland court decision. The particular problem pointed out by the court, however, is something we’ve seen played out more than several times over the years. In this version, it involved a right and option provision amended into an existing lease. The relevant text read as follows: [Read more…]

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How Humpty Dumpty Interprets The Words We Use

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New York State has a law, New York General Business Law Section 518. It deals with how a merchant may post a pricing sign when there are two prices for the same goods – one if paying with cash, and one when paying with a credit (debit) card. This law raised a First Amendment issue, one that worked its way up to the United States Supreme Court and back to New York State courts. So, why will it be discussed on a real property blog site? It is because Ruminations is fascinated, some might say obsessed, with how a literal reading of text doesn’t always turn out to be its applicable meaning. So, it doesn’t matter whether the issue comes up in a contract or a law. Courts don’t have two sets of rules. Yes, some rules may not apply when looking at one category or the other, such as the use of “legislative history” when looking at a law. But, the analogous rule for interpreting words in an agreement is the parties’ “course of conduct” or “negotiation history.” In every case, the goal is the same: find the intent behind the text. [Read more…]

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Time And Deals – Of Mice And Men – Shake A Leg

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Today’s blog posting will reflect that not much thought has gone into writing it. That’s because we realized that it wasn’t going to get measurably better if we picked through it, questioning every phrase, discussing each element with friends and family, and then, after hearing everyone’s “free” advice,” starting all over again. You see, we’ve seen too many others do that with letters of intent (aka: deal sheets).

A lot has been written about whether a letter of intent should be detailed or just cover economic points. Ruminations has added to that body of literature. So, we won’t repeat what we’ve written. That can be seen by clicking: HERE or HERE. A lot has been written about whether (or how) a letter of intent can become an enforceable agreement. Ruminations has added to that body of literature. So, we won’t repeat what we’ve written. That can be seen by clicking: HERE or HERE. [Read more…]

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Negotiating Exclusive Use Clauses (With Sample)

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It is the rare retail project that is unencumbered by exclusive use rights granted by a landlord to one or more tenants.  While that may not have been as true in the distant past, this is now the “rule of the game.”  What is more, this concept has begun to spill over into the office leasing environment.

Large space tenants have the bargaining power to demand protection against competition within the project.  Conceptually, such protection is not unreasonable.  Think about it.  A large (often specialty) retailer draws customers to its store by dint of its reputation and expensive advertising.  Uncurbed, competing businesses would locate “next door” and draw business away just as a parasite would feed on a host.  In the office context, there are tenants who don’t want employees and invitees of competing businesses to be present in the lobbies, elevators, and lunchrooms. [Read more…]

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Maybe A Word Doesn’t Mean What It Unambiguously Means

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Let’s get out in the world. Let’s leave our silos. Let’s break through the real estate bubble. What is Ruminations babbling about? Real property law is not an island unto itself. It is part of the entire body of law. Yet, even those few of us who search for “real” law don’t often look at what courts say in other areas. There are things that can be learned by leaving the real estate tent to see how the rest of the (law) world lives. Today’s blog posting could show why we need to take such strolls. It describes a court decision about how to interpret a seemingly unambiguous trust document. There’s a story behind it and here it is.

As part of her estate plan, a grandmother left her estate’s assets to a trust that paid its income to her surviving husband. She specified that whatever was left upon his death was to go to her surviving grandchildren. Biologically, she had six. Two of her three children insisted that when she wrote “grandchildren,” she only considered four of those six as such. The woman suffered from no mental deficiencies. She was fully competent right up until her death. She could count. She could name all six. Yet, a court agreed that when she said the trust’s assets were to go to her grandchildren, she might have meant only four of them. [It didn’t reach that conclusion. It ordered a lower court to hold a trial to determine what the word “grandchildren” meant to her – what was her “personal” definition.] [Read more…]

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