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Five Key Issues for the Parties to a Sublease

  
  
  
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Heating, Ventilation and Air Conditioning (“HVAC”), Solar and Other “Green” Heating Alternatives in Retail Leasing

  
  
  
HVAC for Retail Leases

Written by: Gary D. Buchman

A topic that arises in virtually every retail lease, and yet is barely addressed in the letter of intent (LOI), is the heating and cooling of the demised premises.  The LOI is typically cursory:  “Landlord shall deliver the demised premises to tenant with a 15 TON HVAC system in good working order.”  Who is responsible to maintain and repair the system?  Whose obligation is it to replace the system if it can no longer be repaired?  While these are all business issues, they are most often left for the lawyers to determine during the lease negotiation.  A standard landlord clause would provide:

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Appeals Court Rejects Buyer’s Attempt to Enforce Seller’s Conditional Acceptance

  
  
  
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Written by: Anthony L. DeProspo

The Massachusetts Appeals Court in Host v. Gray recently affirmed a Land Court decision dismissing a buyer’s claim seeking specific performance of his offer to purchase real property.  In March 2010, the seller subdivided her property into three parcels, two of which became known as “Lot 18” and “Lot 19.”  Thereafter, the seller, through a broker, listed Lot 19 for sale.  The buyer viewed Lot 19 in October 2010.  At that time, the seller’s broker advised the buyer that any sale of Lot 19 would require the purchase of some or all of Lot 18 in order to provide access to Lot 19. 

This couldn’t happen in my mixed-use condominium….or could it?

  
  
  
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Written by: Peter Friedenberg

I just finished reading an article about a recent Superior Court case, Board of Trustees of the Gates of Greenwood Home Owners’ Trust v. Gates of Greenwood LLC, 2014 Mass. Super. LEXIS 12, in which the court invalidated an indemnification clause contained in the condominium Declaration of Trust that entitled the condominium trustees to indemnification from both the condominium trust and the individual unit owners against liability incurred in connection with their actions as condominium trustees.  Since the trustee seeking indemnification in that case was the original developer of the project, and the claims for which indemnification was sought were based on the trustee’s failure to require the developer and its contractors to correct defective work in the condominium’s common areas, the result did not seem all that surprising.  When the court wrote, “By inserting the clause, Greenwood attempted to insulate itself from all liability and make the Trust and unit owners financially liable for its malfeasance”, there was no question that the decision was correct.  But that couldn’t happen in a multi-hundred million dollar downtown Boston mixed-use condominium development (say a hotel and residential tower with commercial space)….or could it?

Mortgagees Beware! – The Massachusetts Obsolete Mortgages Statute Revisited

  
  
  
Ry-co mortgage

Written by: Andrew Royce

The recent Massachusetts Land Court decision in Ry-Co International, Ltd. v. VonIderstein, et al. is a salutary reminder to lenders making mortgage loans in Massachusetts and their counsel that the Massachusetts Obsolete Mortgages Statute (Mass. Gen. Laws chapter 260, section 33)  will cause an otherwise perfectly valid Massachusetts mortgage to be discharged without the lender’s knowledge  after the passage of 5 years from the maturity date stated in the mortgage or, if no maturity date is stated, after the passage of 35 years from the recording of the mortgage. The mortgagee can avoid such discharge by recording, before the expiration of such period, an extension of the mortgage or an acknowledgment or affidavit that the mortgage is not satisfied. Better yet is to not include the maturity date in the mortgage in the first place!

Broker Awarded Fees Where Lease Was Not Signed

  
  
  
signatureWritten by: Joshua M. Alper

A judge of the Superior Court has recently awarded brokerage fees to a realtor despite that the landlord did not enter into a commercial lease with the tenant for which the realtor was compensated.  Finding that landlord had acted in bad faith, the Court distinguished the Supreme Judicial Court’s 1975 landmark decision in Tristram’s Landing, Inc. v. Wait, which established the general rule that in order to earn a commission, a broker must not only obtain a ready, willing, and able tenant, but that a transaction must actually be signed.  The Court found that the defendant landlord had encouraged the agent to market vacant space to medical groups, knowing that for business reasons an existing supermarket tenant of adjacent space objected to medical tenants.  When the plaintiff real estate agent brought a dental practice to rent the space, the defendant landlord used the threat of a dental practice as a stalking horse to persuade its existing supermarket tenant to expand into the premises at twice the rent which the dental practice would pay.

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Retail Shopping: Virtual or Reality?

  
  
  
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Written by: Jane Errico

In the 1998 movie, “You’ve Got Mail,” the charming children’s bookshop owned by Meg Ryan’s character is threatened by the mega-box book store owned by Tom Hank’s character. Despite the small shop’s long history as a part of the Main Street USA-style neighborhood, the store eventually folds underneath the pressure exerted by the discount powerhouse next door. Flash forward to 2014, and Borders book stores have closed their doors due in large part to Amazon.com’s supremacy in the sale of on-line books. According to Bloomberg News, in December 2013, “Cyber Monday web sales surged, sending online shoppers to a single-day record as Amazon.com and EBay, Inc. siphoned customers from brick and mortar stores.” At first glance, it seems like there’s only bad news for traditional retail shops.

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5 Lease Tips for Startups

  
  
  
Leasing for StartUps

Written by: Deborah Howitt Easton

Generally when thinking of a lease arrangement between a landlord and tenant we have in mind a long term relationship.  We think in terms of years.  The parties enter negotiations optimistically with the hope that the tenant’s business will be a success.  While startups have that same optimism, the future may often be undefined and less certain.  Their time horizon is often not thought of in years but rather in months or weeks. (When is the next influx of funding coming in? When will the next round of lab results be completed?) The nature of the startup is such that the companies should carefully consider certain issues when leasing space.  Startups need to think ahead, while at the negotiating stage, and try to anticipate as best as they can how their business may change (for better or worse) in the future.   

A Year in Review: 2013 Real Estate Deals

  
  
  
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Happy New Year! We're looking back on a great year of Real Estate Deals! 

The Basics: Massachusetts Contingency Plan - Massachusetts Chapter 21E

  
  
  
Massachusetts Chapter 21E Harzardous Materials

Written by: Ronald W. Ruth

Many of our clients are very familiar with oil and hazardous materials law and how contamination can significantly affect real estate ownership and/or development. Other clients are not. They may be clients from abroad or those who are new to the real estate ownership and development.  The following is intended for them as an introduction to the vocabulary, concepts and regulatory structure.

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