Articles Posted in Real Estate Litigation

Prior posts on this blog have dealt with the legal issues regarding partition of property. To summarize, a partition action may be brought when a property has two or more owners, and the owners are unable to agree on the disposition of the property. One owner may wish to sell the property to a third party, and another owner may wish to retain the property.

Often, one or more of the co-owners may live at the property in question. Another possibility is that none of the owners live at the property, and are renting the premises to a third party who is not a property owner. This blog post will explore the legal issues regarding tenants and occupancy of a property which may be subject to partition.

The first issue to be examined is where one or more of the owners lives at the property in question. Legally, any owner of the property is entitled to reside at the property if the property is residential in nature. For example, let’s assume a property owner passes away and leaves her house to her three children, each to own a one-third (1/3) share of the property. Under this scenario, any or all of the three children may reside at the house in question. None of the three new owners has a legal right to exclude the others from residing at the property. Of course, this can create problems in a scenario where one owner resides at the property, and the other owners do not. Since the non-resident owners do not have a legal right to evict the owner residing at the property, their main recourse would be a partition action to sell the property to a third party.

One of the most frequently asked questions when our firm meets with a new client relates to the awarding of attorney’s fees. Many of our landlord-tenant clients ask us whether they can recover their attorney’s fees in Court from the other party in the litigation. The answer to this question is not a simple one, and this blog post will answer under what circumstances a party may recover their attorney’s fees from the other party, whether in a landlord-tenant litigation, or other type of case.

The general rule in most United States based lawsuits is that all parties pay their own attorney’s fees, regardless of the outcome of the litigation. This is the standard rule in the U.S., although, in other countries, the loser of the litigation is often obligated to pay the attorney’s fees of the prevailing party.

However, the general rule in the U.S., and, more specifically, in New York State, is subject to certain exceptions. Under these exceptions, which we will discuss, the recovery of attorney’s fees from the adversarial side in litigation may sometimes occur. The first exception is when there is a written contract between the parties that allows for the recovery of attorney fees in litigation. For example, a contract clause may state that if a party defaults in their obligations under a contract, and the other party is obligated to bring a Court action to recover damages, and prevails in that action, then they are allowed to recover attorney’s fees. Careful review of any such contract clause would be necessary to determine whether attorney’s fees would be recoverable.

First, we would like to wish all followers of our blog a happy and healthy 2015. We look forward to continued successful legal outcomes for all of our clients in the New Year.

Our copy of Black’s law dictionary defines a subtenant as “one who leases all or part of the rented premises from the original lessee for a term less than that held by the latter.” What this means is that, ordinarily, a tenant rents premises from a landlord, who is usually the owner of the property. The tenant may, in turn, rent her interest as a lessee to another party. That other party is generally known as a subtenant.

Of course, subletting a property to a subtenant creates many legal issues relating to the landlord-tenant relationship, which we will address in this post. The first issue is whether the tenant has the legal right to sublet the space to a subtenant. The answer to this question is usually found in the lease between the landlord and the over-tenant. The lease may expressly forbid subletting. In that case, the over-tenant is in breach of the lease if they sublet the space. In the alternative, the lease may allow subletting, but only with the permission of the landlord. Some leases will state that such permission is “not to be unreasonably withheld.” In such situations, we recommend obtaining the landlord’s consent in writing. That way, there can be no misunderstanding regarding whether the landlord has consented to a subtenant. Finally, the lease may be silent as to subletting. In such instances, courts have generally held that the subletting is not a breach of the lease and can be allowed.

A recent news story regarding affordable housing in New York may be of interest to readers of our blog. New York City’s Department of Housing Preservation and Development (HPD) approved a separate entrance in a proposed new building containing affordable housing units. The building would therefore have two entrances (it is located on a corner lot), one for the luxury units, and one for low-income units that would comprise 55 of the 219 proposed units.

Of course, many people are outraged by this “poor door,” arguing that it imposes a stigma on the low-income renters in the building. Others may argue that separate entrances should be allowed as the price for the builder to include these low-income units, which may not have otherwise been part of the proposed project. Including these low-income units in the project allows the builder to construct an edifice larger than that which would have been allowed if the building only contained luxury units. It also entitles the developer to certain tax breaks for providing “affordable housing” to the residents of New York City.

The issue of whether all residents of communal housing, such as an apartment building, are entitled to share in all of the building’s amenities can create additional legal challenges. A building in the Chelsea neighborhood of Manhattan has an indoor swimming pool, a rare sight in Manhattan. There are several buildings with access to the pool, known as London Terrance Towers and London Terrace Gardens. However, these buildings contain co-op apartments, which are owner-occupied, as well as rent-stabilized units, which are not. Under an expiring agreement, between the landlord of the Gardens buildings and the cooperative corporation, the renters were allowed to use the pool.