Real Estate and Construction


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Sub-Practice Areas

Overview

REAL ESTATE AND CONSTRUCTION

Anderson Kill's Real Estate and Construction Practice brings together talented attorneys from several allied legal fields to provide legal counsel and representation for a host of complex real estate and development-related issues. Transactional services include acquisitions, dispositions, construction, land use, zoning and financing of commercial, industrial, residential and retail projects. We also handle restructurings, reorganizations and workouts, and provide risk management services as well as insurance coverage counsel. Dispute resolution services include advice as to how to avoid litigation. Where disputes are inevitable, we provide representation in arbitration, mediation, and litigation in court.

Why Anderson Kill?

Our real estate attorneys work closely together on a variety of matters and transactions. They share information to ensure practical, informed and efficient results. Real estate law frequently involves more than one practice area. Anderson Kill brings together an expansive array of real estate legal services to deliver comprehensive solutions under one roof.

For more information, please contact:  Andrew B. Freedland at afreedland@andersonkill.com or (212) 278-1083 or Jeremy E. Deutsch at jdeutsch@andersonkill.com or (212) 278-1172


ACQUISITIONS AND DISPOSITIONS

Our attorneys represent a variety of owners, investors, constructors, design professionals, financial services companies and developers in the acquisition, sale, exchange, management and development of office buildings, shopping centers, industrial properties, multifamily properties, hotels, condominium and cooperative projects, educational facilities, health care facilities and other commercial properties. As a comprehensive practice, we prepare and negotiate limited liability company agreements, partnership agreements, property management agreements, development agreements and asset management agreements, and advise our clients of the most advantageous ways to structure their transactions.

COMMERCIAL LEASING

We offer comprehensive leasing solutions for tenants and landlords throughout the United States and in the very specialized New York City market, from the smallest of boutique pop up spaces all the way through entire commercial building leases.  We can assist with every phase of the leasing project from negotiating broker retention to lease drafting and negotiation to build out.  We have successfully closed leases for retail, commercial, whole building, office space, medical facilities, and warehousing and distribution centers.

We act as advisors though the entire leasing process. We can explain how and why your lease is affected by a myriad of rules and regulations you may never have conceived of, including, by way of example, collective bargaining agreements between landlords and their employees.  We also advise with respect to the impact of zoning and land use regulations on anticipated use of the property.  

From term sheets/letters of intent to obtaining possession of the premises, we offer a “turn-key” solution to your commercial leasing needs.

CONSTRUCTION, DEVELOPMENT, DESIGN AND PLANNING

The firm offers a broad range of services to clients contemplating and undertaking construction and renovation projects. We represent land owners, real estate developers, tenants, constructors, design professionals, financial services companies, investors and lenders in numerous development projects. Among the many construction projects with which the firm has had considerable experience are: hospitals, schools, office buildings, residential apartments and condominiums, data centers, water treatment plants and combined-use structures incorporating residential, retail and office towers.

Development of mixed use projects utilizing air rights in urban settings is a strength of the firm. We have extensive experience drafting and negotiating long-term ground leases and development agreements that bring these projects from concept to reality.

We offer assistance to not-for-profit organizations seeking to develop or fit out facilities to meet their mission requirements. We bring practical insights into the programming, construction, and tax exempt concerns of hospitals, schools and charities using our decades of experience providing real estate services to such entities.

Some of the areas in which we have assisted clients include:

  •  City Planning Commission approvals and variances for nursing homes' expansions and renovations
  •  City Planning Commission approvals for major mixed-use development on behalf of public agency
  • Negotiation, drafting and amendment of numerous lump sum, guaranteed maximum price and variable price construction, construction management and architectural contracts, ranging from small retrofit projects to developments costing in excess of $500 million
  • Electric transformer vault agreements
  • Declarations of Covenants, Conditions and Restrictions, conservation easements and other easement agreements
  • Development agreements for combined occupancy structures using 'air rights' leases and other development rights vehicles
  • Mechanic's lien filing and release
  • Preventing, litigating and responding to claims relating to mechanic's liens
  • Owner's representative agreements to oversee multiple construction phases
  • Retainage release issues
  • Asbestos and other hazardous waste abatement programs
  • Advance payment procedures
  • Demolition contracts
  • Trade contractor bankruptcies
  • Specific issues related to demolition, renovation and construction of infrastructure components, such as tunnels and bridges in franchised and de-mapped space
  • Payment workouts, including constructive trust issues
  • Special permit issues
  • Design errors and omissions
  • Bidder prequalification procedures
  • Delay claims negotiation and litigation
  • Relocation planning
  • Change order negotiations, including scope disputes
  • Construction coordination between adjoining landowners concerning access, party walls and protection of property
  • Property damage claims
  • Off-site materials and equipment storage arrangements
  • Warranty issues
  • Specialty equipment procurement and installation agreements
  • Mock-up protocols and tests, including those affecting curtain walls
  • Closeout procedures
  •  Partial turnover agreements
  • Development and maintenance of risk management policies and procedures, including specification of insurance coverage and oversight of "wrap-up" programs
  • Punchlist administration issues
  • Claims against sureties under payment and performance bonds Assisting clients in navigating the Byzantine pathways of the lien laws of the several states


FINANCING

Anderson Kill represents clients in financing of office buildings, shopping centers, industrial properties, multifamily rental projects, hotels, cooperatives and condominiums, golf courses, medical and hospital facilities, nursing homes and assisted-living facilities situated throughout the United States. We have also been involved in structuring creative forms of financing methods, such as shared-appreciation mortgages, complex participation arrangements and tax exempt debt financings. Our legal team routinely handles legal aspects of the following types of financings:

  • permanent and interim loans (including loans to be securitized)
  • construction loans
  • mezzanine loans
  • preferred equity financings
  • tax-exempt financings
  • revolving-credit financings
  • loans backed by credit leases
  • various types of syndications and other capital market transactions


WORKOUTS AND RESTRUCTURING

Anderson Kill represents a broad range of financial institutions, institutional investors, debt investors, finance companies, owners and developers in real estate workouts, restructurings and foreclosures, both in and out of bankruptcy. The firm's real estate, tax, environmental and litigation attorneys work closely together to advise our lending clients and other real estate investors, as well as borrowers, in dealing with troubled and defaulted loans and distressed real estate, and in acquiring, restructuring and foreclosing real estate loans and in leasing and selling acquired properties. In matters where litigation is necessary to resolve debt and related problems, we offer responsive and effective service at all levels, including alternative dispute resolution, prejudgment remedies, trial and appellate.


INSURANCE COVERAGE DISPUTES

Anderson Kill has extensive experience in representing building owners, developers and contractors in securing insurance recoveries for property losses and in securing defense and  indemnification for liability resulting from accidents and construction defects in connection with real estate development. The firm's insurance recovery attorneys have represented clients seeking 'first party' insurance recoveries for losses ranging from natural disasters such as Hurricane Katrina, the World Trade Center attack and the invasion of Panama. The firm also has represented builders and developers seeking defense and indemnity for liability claims stemming from defective building materials, faulty workmanship and other causes. Our reputation as one of the top policyholder insurance recovery firms in the nation, combined with our experience in representing property owners, developers and contractors, often enables us to settle real estate and construction insurance claims prior to or in the early stages of litigation, thus maximizing our clients' recoveries. Our attorneys also have considerable experience in working with insurance consultants for owners, developers and tenants undertaking significant construction and renovation projects to identify and evaluate specific insurance coverages for construction related risks.


ENVIRONMENTAL RISK-MANAGEMENT SERVICES

As a full-service law firm, Anderson Kill provides comprehensive environmental legal and risk management services relating to real estate and corporate transactions as well as dispute resolution. Our experienced attorneys regularly assist clients with a variety of routine and complex environmental regulatory matters. The firm has considerable experience in CERCLA, RCRA and Brownfield and voluntary or risk-based cleanup programs as well as with implementing institutional controls and other risk-management solutions to address lingering liabilities and indemnification obligations. Anderson Kill's environmental services also include clean-energy initiatives and Green Building construction and risk evaluation. Our attorneys' experience and technical backgrounds provide clients with a particular advantage when dealing with consultants and other technical experts.


CONSTRUCTION LITIGATION AND DISPUTE RESOLUTION

Property owners, contractors, and architects have all benefited from the experience and skill that Anderson Kill attorneys bring to resolving construction disputes. In construction, the main focus must always be on completing the job, in a timely manner, and with as few lingering, and expensive, disputes as possible. With that focus in mind, Anderson Kill attempts to resolve disputes without litigation and in accordance with the overriding business purposes of its clients. Consultation between the firm's litigators and those Anderson Kill attorneys who have extensive transactional experience in the pre-construction and construction phases, provides a very valuable asset in assisting clients in resolving these disputes without litigation. Where construction disputes cannot be resolved informally, by settlement, or other alternative dispute resolution. Anderson Kill attorneys have successfully handled multi-week court trials and arbitration hearings, as well as both pre-trial and post-trial appeals, including appeals in the New York Court of Appeals.

Our attorneys handle matters such as:

  • Defective materials used in construction
  • Faulty design or construction Claims for "extra" work and scope changes
  • Disputes over contract terms
  • Claims that the work was delayed or not timely completed "Liquidation agreements"
  • Architect licensing inquiries
  • Mechanics' liens
  • Bond disputes
  • Casualty loss
  • Construction trust disputes
  • Environmental Control Board hearings


ZONING

The use and development of land and buildings in New York City are governed by a bewildering array of laws, including the Zoning Resolution (800+ pages), Landmarks Law and Building Code, and environmental review procedures. Our land use and zoning practice complements the firm's real estate practice with specific expertise in this niche area of land use law. Anderson Kill is one of the few law firms in New York City that has a land use practice. Our clients include for-profit and not-for-profit developers, health care institutions, academic institutions and law firms representing those entities. We represent clients before the City Planning Commission, Landmarks Preservation Commission, Board of Standards and Appeals, and City Council, and city agencies such as the Departments of Buildings, Environmental Protection, Transportation, Housing Preservation and Development, and the New York City Economic Development Corporation.

Some of the areas in which we have assisted clients include:

  • City Planning Commission approvals and variances for nursing homes' expansions and renovations
  • City Planning Commission approvals for major mixed-use development on behalf of public agency
  • City Planning Commission approvals for residential development project on 25-acre site
  • Advice to major operator of self-storage facilities regarding development potential on site subject to previous City Planning Commission approvals
  • Advice to commercial property owners regarding various issues associated with property ownership in New York City
  • Transactions involving transfers of development rights
  • City Planning Commission approvals of changes to public plaza design
  • Advice to prospective purchasers regarding permitted uses development potential of properties
  • Represented cooperative board in dispute with cooperator over proposed use in building
  • Represented hotel owner in City Planning Commission approval of redesign of plaza space that generated zoning bonus


REAL ESTATE AND ZONING LITIGATION AND DISPUTE RESOLUTION

Anderson Kill's real estate litigators represent owners, developers, commercial tenants, commercial landlords, contractors, architects and governmental agencies in real estate and zoning disputes. Our attorneys handle all facets of litigation and have extensive experience both conducting trials involving real estate and construction matters and handling appeals. For a broader discussion of our Construction Litigation, please see Construction Litigation.

We also advocate our clients' positions in non-litigation settings. We have successfully resolved numerous disputes through mediation, arbitration and settlement negotiations. We attempt to resolve disputes without litigation and in accordance with the overriding business purposes of our clients by utilizing the firm's transactional and real estate litigation experience. When disputes cannot be resolved informally, by settlement or other alternative dispute resolution, we have successfully handled multi-week court trials and arbitration hearings, and both pre-trial and post-trial appeals.

Some of the areas in which we have handled litigation include:

  • Commercial lease disputes
  • Lease renewal controversies and provision disputes
  • Contract disputes, including disputes involving contracts of sale and zoning lot development agreements
  • 'Yellowstone' injunctions (tolling cure periods)
  • Construction eviction
  • Warranty of habitability
  • Environmental Review issues (SEQRA and CEQR statutes)
  • Purchase & Sale Agreement disputes
  • Construction Loan disputes
  • Land Entitlement disputes
  • Surrender and acceptance
  • Non-payment
  • Holdover by tenants and sub-tenants
  • Evaluation of property, including government takings
  • Challenges to zoning decisions
  • Permitted uses under zoning regulations
  • Mitchell-Lama
  • Judicial Foreclosure, Wrongful Foreclosure and Slander of Title Disputes
  • Private money loan disputes
  • Provisional Remedies, including
  • Receiverships, Writs of Attachment, and Injunctive Relief