Minimizing Liability of a Limited Liability Company Manager in a Real Estate Joint Venture

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 […]

Triggering the Buy-Sell: Considerations for invoking a buy-sell provision in a partnership dispute (Part 2)

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 […]

Triggering the Buy-Sell: Considerations for invoking a buy-sell provision in a partnership dispute (Part 1)

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 […]

When Can an Email Modify a Written Agreement?

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 […]

Word of Mouth: When are oral modifications of written agreements binding? Part IV – Equitable Estoppel

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 […]

Word of Mouth: When are oral modifications of written agreements binding? Part III – Promissory Estoppel

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 […]

Word of Mouth: When are oral modifications of written agreements binding? Part II – Waiver

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 […]

Word of Mouth: When are oral modifications of written agreements binding? Part I – Part Performance

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, […]

Piercing the Corporate Veil: A Primer

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 […]