Recent Blog Posts

• Ordinance Requiring Disclosure of Political Contributions Held Unconstitutional
  Local ordinances requiring the disclosure of political contributions in connection with applications for land use approvals under the Municipal Land Use Law (“MLUL”) have popped up in one form or another in numerous New Jersey municipalities. Enacted ostensibly for the purpose of fostering good government and reducing corruption and appearances of impropriety, such laws can be unduly burdensome on landowners and developers. On April 17, 2008, in a case of first impression captioned Greenridge Estates, L.L.C. v. The Mayor and Township Council, et al. the New Jersey Superior Court, Law Division, reviewed an ordinance enacted in Monroe Township, Middlesex County, which required applicants for land use approvals and their professionals to disclose certain political contributions and business relationships and found it to be unconstitutional and contrary to the dictates of the MLUL. In Greenridge Estates, a developer filed an application for preliminary major subdivision ....
• Historic Preservation Statues
  Cotswold vs. Renaud, et al. On April 30, 2008, the Appellate Division in Cotswold v. Renaud, et al. evaluated whether an historic fountain, although not affixed to the real estate, was protected under a local preservation of historic landmarks ordinance.  In this case, a dispute arose when a property owner sought to remove from the grounds of an historic estate a six-foot high fountain after converting the property into condominiums without first obtaining a certificate of appropriateness from the municipality under the ordinance.  The fountain / statue, which consisted of four figures around an urn and weighed over 1,000 pounds, was designed by sculptor, Enid Yandell, and had been located at the historic estate since 1925.  The property owner maintained that the fountain was not attached to the land, and, therefore it was not a fixture was not within the historic site designation. After being instructed by the municipality to return the fountain, the property owner ....
• Commercial Landlords: Four Important Questions to Ask When a Tenant Files for Bankruptcy
  With the recent downturn in the market, a number of commercial tenants are experiencing financial difficulties. In turn, this can lead to problems for commercial landlords, most importantly, the tenant staying current with lease payments. This may then lead to the tenant filing for bankruptcy protection. If your commercial tenant files for bankruptcy, it is wise to have a strategy in place to not only minimize the time of non-payment, but also maximize the ability to receive rents and damages allowed under the Bankruptcy Code.    Following are four (4) questions for commercial landlords to review with an attorney  whenever a commercial tenant files for bankruptcy protection:  1.    Have You Filed a Proof of Claim(s)?  As soon as the tenant/debtor files for bankruptcy protection, commercial landlords should ensure their rights to payment(s) by filing appropriate proofs of claim.  It is advisable to review with your attorney the current ....
• Toll Bros v. Board of Chosen Freeholders: Developer May Seek to Modify Developer's Agreement Upon Changed Circumstances
  On March 31, 2008, the New Jersey Supreme Court decided Toll Bros. v. Board of Chosen Freeholders, which principally held that a developer may seek to modify or reform an off-tract improvements obligation in a developer’s agreement when the project to which such obligation relates has changed.  By ruling in this fashion, the Supreme Court took a practical and equitable stand in resolving the problems that developers and property owners face when things just don’t work out as planned. The facts of Toll Bros, like all cases, are of importance to understanding fully the context of the instant controversy and the breadth of the Supreme Court’s decision.  Briefly, the developer in this case - Toll Brothers, Inc. - acquired a parcel of land in foreclosure with municipal and county approvals and, thereafter, entered into developer’s agreements with Burlington County and Moorestown Township to memorialize its agreement to complete certain off-tract roadway ....
• Landlord's Beware: Options to Purchase Commercial Property Strictly Adhered
  Recently, the Appellate Division of the State of New Jersey in Patel v. 323 Central Avenue Corp., et. al., declared that a tenant’s exercise of his option to purchase certain commercial property was barred.  The court found that the contract was never signed, no enforceable oral agreement was ever intended, the tenant did not make a valid election to exercise his option under lease, and the tenant did not extend his option under the lease.  See Patel v. 323 Central Ave. Corp., et al. A-3724-06T2 (App. Div. 2008). This decision is very helpful to commercial landlords as it supports basic contract law maxims, which requires commercial tenants who wish to exercise certain options to exercise those options with particularity and pursuant to the terms of the contract. BackgroundThe tenant was a physician who entered into a lease agreement for commercial property in Orange, New Jersey.  The landlord was wholly owned by Ocean Mountain Healthcare Incorporated.  In ....
• Municipality Not Estopped from requiring Property Owner to Correct Deviations from Approved Site Plan Existing at Time Certificate of Occupancy was Issued
  On March 31, 2008, the New Jersey Superior Court, Appellate Division, decided Viecelli et al. v. Planning Board of the Borough of Point Pleasant, et al., an unpublished decision. In this case, the plaintiffs constructed improvements on land for an ice cream shop after receiving site plan approvals from the planning board. After numerous inspections, the planning board’s engineers advised the municipality by letter that the plaintiffs had satisfactorily completed the project in accordance with the planning board’s resolution of approval and in reliance upon these representations the municipality issued a certificate of occupancy. Some time later, the planning board discovered that the completed improvements differed from the approved site plans and demanded that the plaintiffs remedy all such deficiencies.The plaintiffs filed suit challenging the planning board’s decision. In addition to requests for declaratory and injunctive relief, the plaintiffs brought claims for ....
• Landlord's Beware: Court Awarded Tenant Attorneys Fees and Double Security Deposit for Failure to Return to Tenant
  Recently, in an unpublished decision, the Superior Court of New Jersey in James Gamble v. David Connolly and Connolly Properties, Inc., DC-6838-07 held that a landlord’s lease was an adhesion contract that did not create a year tenancy, but rather only a holdover tenancy. Due to the landlord’s failure to return the full security deposit for a prior lease, the tenant was awarded double the security deposit owed, plus full costs of court and reasonable attorney fees.   This decision is extremely important for landlords and their attorneys because failure to comply with the security deposit section of the Anti Eviction Act (N.J.S.A. 46:8-21-1) can lead to the landlord having to return double the security deposit and paying the tenant’s attorneys fees. Further, this decision is extremely instructive as to pit falls that landlords can incur by NOT having a tenant sign a lease agreement. Failure to do so can lead a tenant to be considered a holdover ....
• Failure to Respond to a Tax Assessor's Chapter 91 Request May Not Bar An Appeal
  Timothy P. Duggan, Shareholder and member of Stark & Stark's Condemnation and Bankruptcy & Creditor's Rights groups, has authored the article Surviving the Silent Killer: Failure to Respond to a Tax Assessor's Chapter 91 Request May Not Bar An Appeal for the January 28, 2008 issue of the New Jersey Law Journal. The article discusses the recent change in the nation's real estate market, what these changes can mean for a property owner's tax assessments, and address when a tax assessment appeal is warranted. You can read the full article here. ....
• Correcting Mistakes in Tax Assessments
  The average property owner in the Garden State pays about $6,000 a year in property taxes, twice the national average.  To make matters worse, New Jersey is facing a projected $3 billion budget deficit for 2008, which will only complicate the legislature’s effort to provide property owners with any meaningful type of property tax reform.  One of the few ways to reduce property taxes is to correct errors in the annual tax assessment, which may be improperly increasing one’s tax burden.   This article will summarize the steps to correct assessment errors.    As a preliminary matter, property owners must understand how property is assessed in New Jersey. Tax assessors are required to mail to each property owner an annual tax assessment notice, which is generally done in late January or early February of each year.  The tax assessment is on a small green card and provides an assessed value for both land and improvements. The assessed ....
• Stark & Stark Attorneys to Present at Atlantic Builders Convention
  Gary S. Forshner, and Vincent J. Mangini, Shareholders in Stark & Stark's Real Estate, Zoning and Land Use group, will speak at the 59th annual Atlantic Builders Convention. This year's convention will take place April 16-18, 2008 in Atlantic City, New Jersey. Gary Forshner will present Legal Trends - Part 1, Land Use Law on Wednesday April 16, 2008 at 1:00 PM. The presentation will include a discussion on legislation, regulations and court decisions relating to the land development review process and how these issues continue to modify the legal framework within which real estate is developed. In Part 1 of this two -part seminar, Mr. Forshner, along with a panel of additional presenters, will examine the most recent and significant changes in land use law and discuss their implications for the future. Vincent Mangini will present Redevelopment: Problems on the New Frontier? on Thursday April 17, 2007 at 1:00 PM. The presentation will focus on new regulatory proposals and court ....
• Landlord's Beware: Commercial Tenant Failure to Obtain Municipal Permits Not Grounds For Eviction
  The New Jersey Appellate Division in an unpublished decision, Cesar S. Arredondo v. Nersy Pujols, Docket No. A-5459-05T25459-05T2, ruled that breaches of both of a lease provision and a New Jersey statute for failing to obtain municipal permits before commencing construction work were NOT grounds for evicting a commercial tenant.  Although very fact specific to a landlord with apparently “unclean hands”, this decision highlights pitfalls that can beset a landlord in the New Jersey eviction process. Background - Landlord Tries to Evict on 3 Non-Payment GroundsIn Cesar S. Arredondo v. Nersy Pujols, the tenant operated a bodega in Jersey City pursuant to a written lease with a 15 year term.  The landlord, who purchased the property from a prior owner, claimed not to have known of the tenant’s lease.  Subsequently, the landlord filed an eviction complaint based on three (3) non-payment defaults, failure to: 1) provide insurance; 2) obtain municipal ....
• YMCA Hires Architect for Project
  Gary S. Forshner, Shareholder and member of Stark & Stark's Real Estate, Zoning and Land Use group was quoted in the Thursday December 13, 2007 issue of the South Brunswick Post, in the article YMCA hires architect for project. Mr. Forshner comments on the proposed expansion of the South Brunswick Family YMCA and what the added support for the additions could mean for the South Brunswick community. You can read the full article here. ....
• In property valuations, the taxman has the edge
  Timothy P Duggan, Shareholder of Stark & Stark's Real Estate, Bankruptcy & Creditor's Rights and Condemnation groups of Stark & Stark, was quoted in the Sunday October 28, 2007 issue of The Trenton Times in the article, In property valuations, the taxman has the edge. You can read the full article here. ....
• Tenants Allowed to Maintain Almost "No Deductible" For Commercial Insurance Coverage
  When was the last time you reviewed the insurance provision of your tenant’s commercial lease?  Do you know if the lease prohibits a high deductible for the tenant? It is probably a good time to take a look at the lease in light of the New Jersey Appellate Division’s decision on August 20, 2007 in Boston Market Corporation f/k/a Golden Restaurant Operations, Inc.  v. Myrus Hack, docket No. A-0182-05T20182-05T2 27-2-8272 (unpublished). The Appellate Court held that a commercial tenant was not in default under a lease because it’s maintained insurance with an extremely high deductible. The Appellate Court characterized this issue as: “The simple question posed here is whether or not the insurance arrangements made by [plaintiff] comply with the lease provisions respecting the tenant’s insurance obligation.”  The lease did not expressly prohibit insurance with a high deductible. The Appellate Court focused on whether the insurance ....
• Mount Laurel Township v. MiPro Homes Petition Sent to United States Supreme Court
  As a follow up to previous posts regarding the case of Mount Laurel Township v. MiPro Homes, the Builders League of South Jersey, Inc. and MiPro Homes, L.L.C. has petitioned the United States Supreme Court to review the decision issued by the New Jersey State Supreme Court in December. The New Jersey State Supreme Court upheld a lower court’s decision to allow ambush acquisitions stating towns and municipalities could proactively condemn property to prevent development. It is the position of the Builders League of South Jersey and others that this decision, if allowed to stand, will have a chilling effect on development in New Jersey and a negative impact on families with school children and developers of projects deemed politically undesirable. The question raised is whether or not the Takings Clause of the Fifth Amendment to the Constitution prohibits a municipality from condemning private property for “public use” when the municipality’s public use ....
• Construction Liens- The Nub of the Matter
  For those who work on construction jobs, getting paid is certainly far better than the alternative. Creditors with a lien are in a much better position to be paid, particularly if a bankruptcy filing enters the equation. It is critical, therefore, for creditors to understand their rights under New Jersey law.The New Jersey Construction Lien Law (the “Lien Law”) replaced the old Mechanic's Lien Law in 1994. Neither of these laws is applicable to public projects. The new Lien Law (N.J.S.A. 2A:44A-1 et seq.) eliminated the filing of a Mechanic's Notice of Intent. Instead, it is necessary to file certain information within 90 days following the date of the last work, services, materials or equipment provided with the Clerk of the county in which the property is located.A lien claim may only be filed if there is a written contract between the lien claimant and its customer (whether it be the owner, contractor or subcontractor). A lien claimant will lose any rights that it may ....
• More owners facing foreclosure - Many paying a price for easy credit
  Timothy Duggan, Shareholder in Stark & Stark's Real Estate Group, was quoted in Sundays Trenton Times article, More Owners Facing Foreclosure - Many Paynig a Price For Easy Credit. You can read the full artilc here. ....
• Balancing Redevelopment and Property-Owner Rights
  Timothy Duggan, Chair and Shareholder in Stark & Stark's Real Estate, and Condemnation  groups, authored the article Balancing Redevelopment and Property-Owner Rights in the recent issue of NJ Biz Magazine. You can read the full article here. ....
• West Windsor Rite Aid proposal grinds ahead
  Gary Forshner, Shareholder and member of Stark & Stark's Real Estate, Zoning and Land Use group was quoted recently in the article West Windsor Rite Aid proposal grinds ahead in the Princeton Packet. You can read the full article here. ....
• Cooperation in Redevelopment
  Vincent Mangini, Shareholder and member of Stark & Stark's Real Estate Group has authored the article Cooperation in Redevelopment: Proper planning and cooperation can ensure that your redevelopment is successful, for the February 2007 issue of Northeast Real Estate Business. The article discusses the positive effects redevelopment can have on a community, if the proper rules and regulations are followed to ensure both the property owners and builders concerns are taken into consideration. You can read the full article here. ....