Commercial Real Estate Law by Kenneth Bishop: Secondary Resources

This annotation collects and analyzes the cases in which the courts have discussed the applicability of Article 9 of the Uniform Commercial Code (UCC §§ 9-101 et seq.) to a party's assignment, as collateral for a separate transaction, of the party's rights under a real-estate sales contract, a lease agreement, or a mortgage or similar instrument, such as a deed of trust.1

This annotation collects and analyzes the cases in which the courts have discussed the validity of, or have construed a provision of, a real-estate financing contract1 relating to the prohibition2 of prepayment, whether for a fixed period of time less than the term of the loan or for the term of the loan.

This annotation collects the cases dealing with the construction of lease provisions expressly obligating the lessee of premises to pay, as additional rent or directly to the taxing authority, all or a certain portion of any increase during the term in real–estate taxes over some designated or ascertainable base amount of taxes imposed upon the leased premises or against premises of which the leased premises formed a part. A case falls within the annotation's scope whether the lessee's tax obligation under such a provision required him to pay an increase caused by a higher tax rate, or one caused by a greater assessed valuation of the premises, and whether or not the court specifically characterized the provision as a rent "escalation clause."

It has been recognized that the practice of law is not limited to conducting litigation. It also includes giving legal advice and counsel, rendering a service that requires the use of legal knowledge or skill, and preparing instruments and contracts by which legal rights are secured, whether or not the matter is pending in a court. Lending institutions, real estate brokers, title insurers, and corporations who engage in lay conveyancing are some of the entities that, being involved in the sale or refinancing of property, may become involved in a real estate closing or refinancing of a mortgage. Thus, questions have arisen as to whether participation by such entities in a real estate closing constitutes the unauthorized practice of law.

Since the passing of the Sherman Act, the U.S. Supreme Court has been called upon to give the Sherman Act a concrete meaning in a case-by-case fashion. With this general approach, the Supreme Court has occasionally overturned long-standing precedent.

Alabama Law Review
The commercial real estate industry has been devastated by the current economic crisis, losing 40% in value since the end of 2007.

Commercial real estate finance can take many forms and varies widely in structure and the legal issues that pertain to that structure. This chapter does not attempt to provide a deep dive into each type of financing available to commercial real estate projects. Rather, it is an overview of some of the major elements of the commercial real estate transaction process, including the role of counsel and other professionals in the acquisition, disposition, and financing of commercial real estate.

An easement in gross of a commercial character may be subjected to all of the restrictions on alienability to which an estate in land of like duration may be subjected.

The Comment will be modified to include discussion of the doctrines of agency and estoppel, and more will be said at the outset about the issue of appropriate notice. Account will be taken of the notification rules under the Real Estate Settlement Procedures Act for the transfer of servicing of mortgages.

Mortgagees frequently rely not only on the real property itself as security for the mortgage obligation, but also on the rents it produces. Hence they often utilize mortgage clauses or separate agreements by which the mortgagor “assigns” the rents as additional security for the obligation. These agreements are employed under the assumption that a mortgage on real property alone will carry no security interest in the rents.

The law does not give a residential real estate broker a lien upon the property for a commission1 but permits a broker to file an ordinary action at law for its collection.2 The filing of a lis pendens notice against the land is improper.3

The final element a plaintiff must demonstrate, in order to prevail on a claim of tortious interference, is financial injury.1 Whether alleging tortious interference with contractual relations, business relations or potential business relations, the plaintiff must show that damage to rights or obligations under a contract proximately resulted from the interference.2 The plaintiff must demonstrate that the defendant's actions and a resulting inducement of another to withdraw from potential business relationships caused the plaintiff to suffer financial injury.

The requirement, as an element of a claim for tortious interference with business relations, that the tortfeasor acted without privilege requires proof that the defendant was an intermeddler or stranger to the business relationship at issue.1 A party thus cannot tortiously interfere with its own business relationships.

A sale at auction is nominally an offer by the owner to sell the property to the highest bidder without any qualification, unless the owner reserves to him- or herself openly at the time of the sale the right to bid upon the property, or openly announces a price below which the property will not be sold.1 Broadly speaking, the law does not, on the one hand, countenance anything that will stifle competition among bidders,2 or, on the other hand, fictitious bidding or puffing.3

A real estate broker may have a specific lien on land or purchase money coming into his or her possession in the course of employment; however, a broker has no possessory lien where the circumstances are such that the enforcement thereof would be inconsistent with the express or implied terms under which possession was obtained by the broker.1