Category: Transactional Real Estate and Leasing

Real Estate and Pass-Through Provisions of the New Tax Act

The new Tax Act was signed into law on December 22, 2017. Holders and developers of commercial real estate will be impacted by certain provisions of the new Tax Act, such as its treatment of real property depreciation deductions, 1031 like-kind exchanges, and pass-through rates. We direct you to our recent Legislative Tax Alert for a more detailed overview of certain relevant provisions of the new Tax Act. If you have questions or concerns about how the new Tax Act will impact you or your business, please contact Russell B. Bershad, a Director in the Gibbons Real Property Department, or Peter J. Ulrich, a Director in the Gibbons Corporate Department.

Proposed N.J. Assembly Bill Allocates a Share of PILOT Funds to School Districts

As reported in the June 16, 2017 NAIOP WeekEnder, a bill is pending in the Assembly requiring five percent of each annual service charge under a PILOT agreement in connection with a residential redevelopment be remitted to the school district. At present, a municipality retains 95 percent of PILOT payments, the other five percent being remitted to the county. Conventional real estate tax payments are divided among the town, county, school district, and some other stakeholders, such as a fire district, municipal open space, etc. The splits vary, but the school district portion is substantial, often the largest share. To use one example, in Sayreville, the 2016 allocation to the school district is 55.74%; the municipal share is 26.49% and the county share is 14.79%. It is often contended that PILOTs are unfair to school districts because none of the PILOT payment is allocated to the school district. Indeed, school districts have challenged PILOT agreements in court. See, for example, the unreported 110 page, 2005 decision of Mercer County Assignment Judge Feinberg Hamilton Township Board of Education vs. Township of Hamilton and 240 Princeton Urban Renewal, LLC. Whether or not PILOTs truly adversely impact school district budgets is a matter of debate. Regardless of the merits of the debate, it is fair to ask if remitting five percent of PILOTs...

What Parcel? SCOTUS Hears Arguments in Case Poised to Clarify the Court’s Regulatory Takings Jurisprudence

The Supreme Court of the United States entertained arguments on Monday, March 20, 2017 in a case likely to fortify its Fifth Amendment regulatory takings jurisprudence. The case, Murr v. Wisconsin, is on appeal from Wisconsin’s high court and, when decided, should answer a question left open by the Court’s 1978 ruling in Penn Central Transportation Company v. City of New York. In Penn Central, the Court instructed that in determining whether a regulation has gone far enough to constitute a taking of private property, courts should not limit their analysis to the regulation’s effect on some discrete segment or portion of the subject property, but should instead consider the regulation’s interference with property rights “in the parcel as a whole.” The question of how reviewing courts should define that parcel, however, has gone unanswered for decades. Enter the Murr children, whose parents purchased two adjacent tracts of land along the St. Croix River in the early 1960s. The Murr parents built a cabin on the first lot and maintained title to it in the name of their business. The second lot, purchased afterwards, was kept in their name and remained largely undeveloped. In 1976, a county ordinance was passed establishing new minimum lot size requirements for properties in the area. While this ordinance contained an exception for...

Gibbons Part of Team Nominated by NAIOP for Mixed-Use Deal of the Year

NAIOP New Jersey, the commercial real estate development association, has announced the finalists for its Deal of the Year Awards. Gibbons P.C. was part of the team nominated for Mixed-Use Deal of the Year for the project involving the disposition of the Hoffmann-La Roche US headquarters in Nutley and Clifton, New Jersey. Winners in the categories of Industrial Deal of the Year, Office Deal of the Year, and Mixed-Use Deal of the Year will be announced at the 30th Annual Commercial Real Estate Awards Gala on May 11, 2017. Gibbons was part of the team that led the successful sale of the former 116-acre headquarters and research and development campus of Hoffmann-La Roche, which spans the municipalities of Nutley and Clifton, to Prism Capital Partners and a Boston-based investment manager. As part of the transaction, a joint venture between Hackensack University Medical Center and Seton Hall University will lease two of the campus buildings and 16 acres of the property for the new Seton Hall–Hackensack Meridian School of Medicine, the first new private medical school in New Jersey in over 40 years. The new site will also house Seton Hall’s College of Nursing and its School of Health and Medical Sciences, along with a National Health Institute-designated Clinical Research Center that Hackensack Meridian plans to...

Russell Bershad Named to the NJBIZ Real Estate Power List

Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, has been named to the NJBIZ Real Estate Power 75, a list of the most powerful people in New Jersey real estate. Mr. Bershad appeared for the first time this year, ranking 55th on the list. NJBIZ notes, “Russ Bershad is a newcomer to the list. But, according to one fan, he’s been in the mix for quite some time. ‘He was involved in the Roche deal, he represents David Barry in Jersey City. He’s doing a lot of good things there.’ Said another: ‘You know every detail is going to be pored over when you hire Russ.’ Said another: ‘If you’re going to add more lawyers to the list, and that’s a good idea, Russ is one of the people you need to have.’”

SNDAs: Often Encountered, Rarely Discussed

Subordination, non-disturbance and attornment agreements (SNDAs) are often encountered by transactional real estate lawyers, but infrequently discussed. An SNDA is an agreement among a tenant, the landlord’s mortgage lender and, usually, the landlord. An SNDA provides that a tenant’s lease will be subordinated to a mortgage on the landlord’s property, and the mortgage lender will agree that if the mortgage goes into default and the lender forecloses its mortgage, the lease will continue (i.e., it will not be disturbed).

Plans for New Medical School Move Ahead as Hoffmann-La Roche Announces Completion of Purchase and Sale Agreement of its 116-Acre Campus

As reported in today’s NJBIZ, Hoffmann-La Roche has completed the purchase and sale agreement of its 116-acre campus, located in Nutley and Clifton, NJ, to PB Nutclif I, an affiliate of Prism Capital Partners. Seton Hall University and Hackensack Meridian Health then entered into a long-term lease with the developer for the creation of a private medical school and clinical research center. Seton Hall will also relocate its College of Nursing and School of Health and Medical Sciences to this site.

No Specific Waiver, No Arbitration: Enforceability of Arbitration Provisions in New Jersey Real Estate Contracts in Doubt Following Dispenziere v. Kushner Cos.

Companies doing business in New Jersey and accustomed to settling contract disputes through binding arbitration should carefully review their contracts – and carefully draft all future contracts – to ensure that each arbitration provision contains clear and unambiguous language that the parties are waiving their rights to sue in court. An arbitration clause stating that all disputes will be determined through binding arbitration, but failing to contain this explicit waiver, may not be enforceable in accordance with the recent holding by the Appellate Division in Dispenziere v. Kushner Cos.

New Jersey Supreme Court Adopts O’Brien Factors For Determining When Real Estate Transactions Constitute an Equitable Mortgage

Founded on the principle that equity looks to substance over form, courts will find an equitable mortgage to exist when a deed or contract, while lacking the characteristics of a typical mortgage, is used to pledge an interest in real property as security for a debt with the intention of acting as a mortgage. On September 9, 2014 in Zaman v. Felton, the New Jersey Supreme Court decided that when determining whether a particular transaction gives rise to an equitable mortgage, a trial court must utilize the eight factor test set forth by the Bankruptcy Court for the District of New Jersey in O’Brien v. Cleveland.

Appraisal Provisions in Leases Mean More Than You Think in New Jersey

It is a common belief that appraisal provisions in leases governing future renewal rents don’t really mean anything. The logic behind this conclusion is that regardless of what the lease says, if the tenant doesn’t receive a new rent number that justifies staying, it will leave. There is a lot of truth to this. However, a recent New Jersey Appellate Division decision, Cablevision of Oakland, LLC vs CK Bergen Holdings, LLC, App Div 27-2-3149 demonstrates neither a landlord nor a tenant can rely on conventional wisdom as a reason to forego doing the right job in the documents. If you are concerned about the methodology to be used in the appraisal process you had better make that clear in the lease. And if you want the Court to have the power to review an appraisal to determine whether there was compliance with the methodology mandated by the lease, you better make that clear in the lease, too.