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Delaware limited liability companies have become a popular vehicle for real estate joint ventures and preferred equity investments in real estate. As a manager, co-manager or managing member of an LLC, you may have certain duties and liabilities to your partners and to the company itself, even beyond those expressly set forth in the limited […]
This is Part 2 of a two-part series on triggering a buy-sell. This week we will consider three more factors to weigh when invoking a buy-sell in a partnership dispute. 1. Waterfall/Distributions As discussed in last week’s installment, the calculation of the purchase price for the partnership interests under the buy-sell often involves starting with […]
In a down market, partnership disputes tend to rear their heads with increasing frequency, and many partners begin looking for a way out[1]. One place they often turn is the buy-sell mechanism. But before pulling the trigger on a buy-sell, there are several things to consider in order to prepare for how the circumstances might […]
Following up on the series of articles over the past four weeks regarding oral modification of written agreements, we now turn to a related topic: modification of a written agreement by email. Generally, the legal doctrines covered in the oral modification series — part performance, waiver, promissory estoppel and equitable estoppel — will apply to […]
Equitable estoppel differs from promissory estoppel in that whereas promissory estoppel requires a clear, unambiguous promise, equitable estoppel may be established by conduct alone. To establish a claim of equitable estoppel, three elements must be established: (1) conduct which amounts to a false representation or concealment of material facts; (2) intention that such conduct will […]
Promissory estoppel arises when one party makes an oral promise to another party who relies on that promise and suffers some damage as a result. Under New York law, the elements of promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an […]
Under New York law, a waiver is “a voluntary relinquishment of a known right, which would have been enforceable, but for the waiver.” In other words, a waiver occurs when a party intentionally gives up a right that it knows that it has and that it would otherwise have been able to enforce. New York […]
Most well-drafted legal documents include language that provides that the agreement cannot be modified except by a written agreement signed by both parties — or some other provision of similar effect. You may think that means that nothing you say can modify the documents. However, this is not necessarily the case. Under New York law, […]
If you have worked in the areas of structured finance or commercial real estate — even if you are not a lawyer — you may be familiar with the concept of “piercing the corporate veil.” You probably have used special purpose LLCs to limit the liability of individuals and to protect holding companies with substantial […]
During the real estate boom of the 90s and early 2000s mezzanine lending became a commonplace source of capital for developers and other sponsors. Now, as the economic downturn continues and real estate values continue to fall, more and more mezzanine lenders are finding themselves with defaulted loans. In this series, we will examine five […]
Whether you are a borrower, a B-piece holder or a foreclosing mezzanine lender, at some point you have found yourself in the unenviable position of dealing with a special servicer. By gaining insight into what motivates special servicers, you will solidify your negotiation strategy and better understand how to avoid a few common pitfalls. In […]
The Wall Street Journal reported this week that Eagle Hospitality Trust and Blackstone Group struck a deal to avoid foreclosure on 13 upscale U.S. hotels.  Eagle owns the 13 properties, which include the Cincinnati Landmark Marriott, and Blackstone holds the debt. Rather than proceed with foreclosure, Blackstone has agreed to accept an undisclosed amount as […]
An article in the Wall Street Journal this week highlights a developing battle for ownership of four giant U.S. luxury resorts. Singapore’s sovereign-wealth fund, a creditor in the bankruptcy case involving the four resorts, is forcing an auction of the properties by year-end — against the wishes of the current owners: a group led by […]
The Wall Street Journal reports on a new approach to refinancing underwater home mortgage loans that involves municipalities using their powers of eminent domain to seize mortgages from lenders. The loans would then be refinanced through a federal loan program. The proposal, being pitched to municipalities by advisory firm Mortgage Resolution Partners, could generate returns […]