Transactional/Litigation Law Blog

News and Updates in Transactional/Litigation Law Issues

A blog by attorneys
from Waters
McPherson
McNeill, P.C.

RISKS AND REWARDS - AIRBNB RENTALS

Posted on Thursday, September 29, 2016 by Robert S. Lipschitz , Robert J. Guanci

            On the surface it may seem like a great idea for a property owner to make a few dollars renting out a house or apartment while out of town.  Some property owners have even purchased properties as an investment specifically to rent them out on the short term online marketplace AirBNB.  However, cities and towns all over New Jersey are beginning to take notice of the online listings and are cracking down on how an owner may utilize their property. 

            It has been widely publicized recently that Newark and Jersey City have legalized the short term rental market, setting out the rules to be followed by the property owners and instituting a tax upon the rentals similar to a hotel occupancy tax.  Other towns in Northern New Jersey, where bargain hunting New York City tourists look for an alternative to punitive hotel prices, have taken the opposite track and are passing specific regulations outright banning the use of AirBNB.  These towns, including Fort Lee, Union City, North Bergen, and Leonia have passed or are considering legislation prohibiting short term AirBNB type rentals.  In San Francisco, AirBNB is challenging (in Federal Court) an ordinance barring these rentals.

            In municipalities where no specific legislation permitting or banning short term rentals has been passed, prospective AirBNB landlords should still be aware of local zoning laws which often place requirements on property rentals.  These requirements may include the need to obtain a certificate of occupancy for each new renter, which usually requires making an application to the municipality, paying a fee, reporting the name of the prospective renter, and conducting a fire/safety inspection.  Additionally, renting single family homes to more than 15 people, or for large scale social events may trigger regulations aimed at hotels and boarding houses which themselves require additional permitting.

            Municipalities also have a range of enforcement mechanisms at their disposal to discourage short term rentals.  These include notices of zoning violations and property maintenance tickets such as failure to separate recyclables.  Neighboring property owners may also take exception to unruly renters and file noise complaints with the local authorities requiring time consuming and potentially costly court appearances which may consume any profits from the rentals.

            It seems likely that restrictions specifically directed at AirBNB rentals in New Jersey will spawn considerable litigation and it is yet to be seen whether courts would uphold such restrictive zoning ordinances.  Newark and Jersey City’s decision to legalize short term rentals and collect taxes on the income generated by property owners was likely compelled by concern over litigation costs as well as a desire to collect what could amount to considerable income for those urban Cities.  However, suburban communities, with their more serene settings and lower potential for revenue generation from short term rentals, seem less likely to permit any rentals which would affect neighborhood character and the property values inherent in stable homeowner occupied residences.          

Please feel free to contact us if you have any questions.

Contact Info:

Robert S. Lipschitz, Esq.

Email: rsl@lawwmm.com

Phone: (201) 330-7455

Robert J. Guanci, Esq.

Email: rguanci@lawwmm.com

Phone: (201) 330-7463



ADVOCATING FOR PROPERTY TAXPAYERS---IT DOESN’T STOP WITH THE ASSESSMENT

Posted on Wednesday, October 14, 2015 by Joseph G. Ragno

ADVOCATING FOR PROPERTY TAXPAYERS---IT DOESN’T STOP WITH THE ASSESSMENT

 

Let’s begin with a simple and obvious reality-the vast majority of taxpayers who seek the advice of real estate tax professionals do so because they are unhappy with the assessed value of their property, the tax burden levied on the property, or both. However, lately, a new concern is becoming more and more prevalent among taxpayers and in particular, those who own investment-class properties. This concern is New Jersey’s so-called “Mansion Tax”.

To review, the “Mansion Tax” (N.J.S.A. 46:15-7.2) is a fee imposed upon the grantee of a deed to real estate which is classified for property tax purposes as either Class 2 (residential 1 to 4 family), any other real property conveyed to the same grantee in connection with the sale of Class 2 property regardless of classification, Class 3A (farmland if the property includes a building intended as or suitable for use as a residence), a cooperative unit, or property which is classified 4A (Commercial); AND the property is transferred for consideration in excess of $1,000,000. While the law as originally passed applied only to the transfer of residential property with price tags exceeding $1 million, in 2006, the law was amended to make it equally applicable to commercial properties bearing 4A Classification.

At one percent (1%) of the recited consideration, the impact of the Mansion Tax cannot be overstated. In a significant deal, potential liability for the tax can be a significant factor in the underwriting decision. Often, the focus on the Classification of the property to be sold is not scrutinized until a Purchase and Sale Agreement is signed, and in some cases not until the eve of closing. If the classification of the property is undeniably correct; .e.g. in the case of the sale of an office building bearing a classification of 4A, the tax is paid at time of closing. If, on the other hand, the property by its classification is plainly not subject to the tax; e.g., an industrial property classified 4B, this fact is certified in the Affidavit of Consideration and the tax is avoided. However, what happens if the property is misclassified? What happens if a 350 unit apartment complex is classified 4A?

Who Assigns the Property Class Code for a Given Property?

The Property Class Code is assigned by the municipal tax assessor and certified for each property along with the assessed value each year on or before January 10. The New Jersey Administrative Code provides broad definitions as to how certain types of property should be classified, depending on how the property is used, but the regulations provide little guidance as to how property should be classified when it incorporates two or more uses under one roof ( Ex. A 350 unit apartment building with a small café on the ground floor), or where the property improvements are of such a type that they could fall into one or another category depending on how they are used (Ex. a flex building).

In fairness, it must be stated that the Property Classification has absolutely no impact on assessed value. So, why worry about property classification at all? A property which should be classified as 4B (Industrial) but which bears a Classification of 4A, will be presumed to be subject to the Mansion Tax. Although an improper classification can be overcome post-closing by appealing to the Director of the Division of Taxation and ultimately litigating the issue in Tax Court, the tax is collected at closing, subject to refund if the taxpayer’s position is vindicated through this time-consuming and costly legal process.

A Better Way to Address the Issue

We are recommending to our clients that, rather than waiting until they are ready to sell the property to review the Classification assigned to the property, they review it with us now to determine if it is appropriate. In the event it is determined that the Classification is not appropriate, we believe that our clients are better served by appealing the Property Classification in the normal tax appeal cycle by filing a tax appeal with the County Board of Taxation on or before April 1 of a given tax year. A settlement of the issue would result in a judgment correcting the Property Classification which in turn would pay dividends down the road by eliminating the surprise of an inappropriate 4A Classification discovered on the eve of closing.

It is our recommendation that property owners, when they review the assessments of their properties annually, also review the assigned Property Classification. The Classification can be appealed at the same time the assessment is appealed or can even be appealed independent of a challenge to the assessed value of the property. We’d be happy to assist you with the review of your properties’ Classification and to explore with you the various options open to you to seek a change in Classification, where a change is justified.

If you have any questions, please contact Joe Ragno at (201) 330-7465 or jragno@lawwmm.com.

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Pay Promptly or Prompt Trouble--New Jersey’s Prompt Payment Statute

Posted on Monday, May 18, 2015 by Nicholas I. Filocco

PAY PROMPTLY OR PROMPT TROUBLE--NEW JERSEY’S

PROMPT PAYMENT STATUTE

 

If you are an owner or developer of a private construction project, the New Jersey Prompt Payment Statute, N.J.S.A. 2A:30A-1, may impose obligations on you not set forth in your contract with your general, or prime contractor.  It may indeed be a trap for the unwary.  The first sentence of the principal statute, N.J.S.A. 2A:30A-3, states in essence that if a contractor’s requisition for a periodic payment covers work performed in accordance with your contract, which work has been approved by you as owner or your authorized agent (usually the architect, or engineer), the requisition must be paid within 30 calendar days from the billing date.  If payment is not so made, the delinquent owner shall be liable for the amount of money in the requisition, plus interest equal to the prime rate plus 1%.”  Furthermore, if a “lawsuit is necessary to collect the payments due to the contractor under the statute, the “prevailing party” is entitled to an award of the reasonable costs of suit and attorney fees.

Under the Prompt Payment Act, all construction contracts are also deemed to require submission of disputes regarding (e.g. whether a party has failed to make payments pursuant to the statute) to “alternative dispute resolution”, i.e., binding arbitration.  (New Jersey has a separate statute dealing with the procedures for binding dispute resolution, N.J.S.A. 2A:23a-1).

So far the Prompt Payment Act seems straight forward – if the work was approved, it must paid within 30 calendar days after the billing date, as established by the date periodic payments or final billing are to be paid under the contract terms.  Now comes the potential trap for the unwary.  The Statute also specifies that:

"The billing shall be deemed approved and certified 20 days after the owner receives it unless the owner provides before the end of the 20 day period, a written statement of the amount withheld and the reason for the withholding payment.” (emphasis added)

This clearly requires the owner to be diligent in processing the contractor’s payment requests; the owner must set forth in writing the reasons for withholding any payments.  In the course of the numerous demands on the owner and its staff during a complex project, the 20 days and the writing requirement can be overlooked, and payments become irrevocably due and owing  -- the entitlement to which may otherwise have been objectionable.  In short, diligent management is necessary. Should you need help in addressing this or other legal issues in the course of managing your construction project, please contact Nick Filocco at (201) 330-7458 or at nif@lawwmm.com.

 

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The New Frontier in Urban Development:Logistics and the Growing Demand for Distribution Centers

Posted on Thursday, August 28, 2014 by Robert  F. Cavanaugh, Jr.

The New Frontier in Urban Development:

Logistics and the Growing Demand for Distribution Centers

 

Our partner, Robert Cavanaugh, is on the advisory Board for New Jersey City University’s new Logistics Center (the “Center”) in Jersey City which is part of the University’s Business School. Here is his “take” on why this is an opportunity for anyone with an interest in commercial warehouse development.  The Center helps to prepare the students for the growing Logistics industry.  The Center’s mission statement is: “…to advance workforce innovation through industry collaboration.

What is Logistics?  In simple terms, logistics is the coordinated movement of goods from one point to another. The global economy has shifted the manufacturing base to lower cost markets such as Asia and South America but many of the goods they produce are consumed here in the US and the logistics industry is the method by which they are distributed to the consumer.  For example, a TV made in China is transported across the ocean on a container ship. It’s then placed on a train or truck and transported to a warehouse. It can then be transported via truck or rail to other warehouses for local distribution or even directly to a consumer.

This whole process requires sophisticated coordination of people, buildings, machinery and equipment, including the precise tracking of the goods shipped. The jobs associated with this industry  cover a broad spectrum ranging from typical warehouse operations to the more technical associated with engineering, computers and other fields required to ensure the entire system is well planned, coordinated  and operates safely and smoothly. Representing these clients from a legal perspective requires a sophisticated understanding of many aspects of not only the industry but also land use and transportation laws on the Federal, State and Local levels.

We are all familiar with the internet and the ability it provides to easily search for information. Much of the activity that takes place on the internet is the search for goods which consumers then have shipped to their homes or businesses. The growth of “online” shopping has a direct correlation to the growing logistics industry. Every day, more and more people go to sites such as Amazon.com to purchase goods. Placement of that order is basically the next to last step for the purchased item to reach the consumer. There is an entire process, the logistics process, which occurs from the manufacturing plant to that item reaching the consumer. As online shopping continues to grow, the mechanism for the distribution of the goods purchased will also evolve. It’s already happening. Goods arrive at ports, such as Port Elizabeth, and are then shipped to large distribution centers which supply warehouses and which, in turn, distribute the goods to local stores or directly to the consumer. Large distribution centers can also be direct suppliers to consumers.

To simplify the difference in function between a distribution center vs. a warehouse, distribution centers generally do not hold goods for long periods of time. Large distribution centers tend to be regionally located and cover certain geographic areas.  These centers and the warehouses they supply, rely on a massive trucking and rail industry to move the goods. As a direct result of online shopping demands, there is a growing need in the industry for more local distribution centers which will directly service the consumer in a specific geographic region. That translates into jobs, tax revenue and revitalized communities.

Understanding this industry as our firm does, not only its design and operational needs but complex issues such as traffic and neighborhood impacts, specifically in urban areas, is essential to providing effective legal representation for clients. The impact distribution centers can have on a local community are transformative!  The loss of manufacturing jobs over the past 2 decades has been a significant factor in the decline of neighborhoods, especially in the inner cities. Waterfront communities, such as in Jersey City’s Gold Coast, have experienced a significant revitalization directly attributed to the jobs associated with the New York financial industry.

The inner city neighborhoods however, continue to struggle in what has become known as the modern day “tale of two cities”. Nonetheless, these neighborhoods often can be revitalized in relatively short periods of time with the development of a large distribution center. One recent example is the 887,000 sq. ft.  Prologis Pulaski Distribution Center in Jersey City. This is a prime example of a successful coming together of business and government which has resulted in sorely need jobs and tax revenues.

Our firm was successful in helping put together comprehensive game plans to not only successfully achieve the client’s goals but also to address concerns and needs of the City and local community.

As I write this, the City is realizing over $1m a year in tax revenues on a property that was previously tax exempt, and over 500 new jobs are being filled through job fairs organized between the City and the Tenants. These are good paying jobs covering all aspects of the operations needed to successfully run this logistics network; they will enable individuals to improve their quality of life which in turn improves the quality of life in a neighborhood. In the movie Field of Dreams the theme was “build it and they will come”. It’s the same here, build these Distribution Centers, the jobs will come and neighborhoods can be revitalized. Working people will look for better housing. Developers will see this need and lots that now sit vacant will get developed with good affordable housing. All it takes is vision, leadership and a correlation between the development team, the community and the City leadership to make the vision a reality. As lawyers, having an acute understanding of logistics and Distribution Center operations is fundamental to providing effective legal representation to the client. It is also essential for addressing issues presented by governing bodies during the local land use process as well as the needs and concerns of the proposed Center’s surrounding community.  Call and let us help you if you’re a developer or a prospective tenant with an interest in these types of commercial ventures.

If you have any questions or comments, please contact Robert Cavanaugh at rcavanaugh@lawwmm.com; phone: (201) 319-5739 – direct.

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Of Counsel Emeritus John Wefing Speaks at Justice Complex

Posted on Tuesday, July 01, 2014 by John B. Wefing

John’s June 18th presentation focused on the role of the governors of New Jersey with the Justices of the New Jersey Supreme Court with special emphasis on the creation of the modern New Jersey Supreme Court in the 1947 Constitution and the issues concerning judicial independence.

The presentation focused on the power that Mayor Hague had over the Courts through his control over many governors and the very different approach of Governors Driscoll and Hughes.  John B. Wefing, the Distinguished Professor of New Jersey Law & History, has authored a biography of Richard J. Hughes, the only person to serve as both Governor and Chief Justice of New Jersey.  The book was chosen as a 2010 Honor Book by the New Jersey Council for the Humanities.

In April of 2011, the Governor of New Jersey appointed Professor Wefing to the Governor’s Council on Higher Education.  Professor Wefing specializes in federal and state constitutional law with particular emphasis on criminal issues.  He has been a Professor of Law at Seton Hall University School of Law for the past 44 years.  He has taught numerous courses including courses dealing with the New Jersey Constitution and the New Jersey Court System.

If you have any questions or comments, please contact John B. Wefing at  jbw@lawwmm.com, (201) 863-4400.

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Of Counsel Emeritus John Wefing Speaks to a Packed House in Jersey City

Posted on Wednesday, May 14, 2014 by John B. Wefing

On April 1, 2014, our firm’s Counsel, John Wefing, spoke at St. Peter’s University -- the most well attended Continuing Legal Education program ever at St. Peter’s. John also is a Distinguished Professor of New Jersey Law and History at Seton Hall Law School.  Read Entire Article

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THE “NEW” NEW JERSEY LIMITED LIABILITY COMPANY ACT – WHAT IT MEANS FOR YOUR LLC

Posted on Monday, December 30, 2013 by Perry  Florio

Effective March 18, 2013, after almost twenty years on the books, the New Jersey Limited Liability Company Act (the “Old Act”) was repealed and replaced in whole with the “Revised Uniform Limited Liability Company Act” (the “Revised Act”). The Revised Act currently governs all limited liability companies formed after the effective date of March 18, 2013. On March 1, 2014, the Revised Act will be applicable to all New Jersey limited liability companies whether they were formed before or after effective date of the Revised Act.  Read Entire Article

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Etelson v. Shore Club South Urban Renewal, L.L.C.

Posted on Wednesday, April 23, 2014 by E. Neal  Zimmermann , James M. Spanarkel

In a recent unreported case entitled Etelson v. Shore Club Sourth Urban Renewal, L.L.C., (Docket No. A-0570-11T4 – Decided March 10, 2014), the Appellate Division ruled on issues involving the state Consumer Fraud Act (“CFA”) and the state Planned Real Estate Development Full Disclosure Act (“PREDFDA”). PREDFDA is the statute which requires the developer of most condominium developments to register with the Department of Community Affairs (“DCA”) and to provide extensive disclosure to prospective purchasers in the form of a Public Offering Statement (“POS”). Read Entire Article

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Lubik v. Harleysville Insurance:Breaching an Insured’s Reasonable Expectations of Coverage

Posted on Tuesday, April 22, 2014 by Mark J. McPherson

Lubik v. Harleysville Ins. Co. of N.J., A-1120-12T2, 2014 WL 740087 (N.J. Super. Ct. App. Div.) The New Jersey Appellate Division recently affirmed a trial court’s denial of water damage claim under a condominium unit-owner’s dwelling policy that expressly included water damage coverage, through a misinterpretation of an exclusionary subsection of the policy, negating one of the essential insured considerations – coverage of water damages.  Read Entire Article

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The Role of Amicus Curiae in Insurance Coverage Matters

Posted on Friday, February 14, 2014 by Mark J. McPherson

There’s a curious subtext to the recent New Jersey Supreme Court insurance coverage opinion in Farmers Mut. Fire Ins. Co. of Salem v. N.J. Property-Liability Ins. Guar. Ass’n, 215 N.J. 522 (2013), decided September 24, 2013, related to the presence of several amicus curiae that seem to be the real parties in interest. Our earlier blog post on Farmers Mutual includes comments on the role of the amicus parties in the case, and the specific arguments they made. It is curious because, in Farmers Mutual, the insured policyholder had already been settled out of the controversy, and as it proceeded under appellate review, the dispute was solely between the insurer on the risk and the State’s insurance guaranty fund.  Read Entire Article

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THE N.J. SUPREME COURT’S “OWENS-ILLINOIS” ENVIRONMENTAL COVERAGE ALLOCATION FORMULA-- INTENDED TO FAIRLY MARSHAL COVERAGE FOR AN INSURED--SURVIVES YET ANOTHER INSURER ATTEMPT TO TRANSPOSE INSURANCE POLICY ALLOCATION INTO AN INSURANCE COVERAGE REDUCTION FORMULA

Posted on Thursday, January 23, 2014 by Mark J. McPherson

Insurance law usually arises out of litigation between insureds and their insurance carriers, but twice within the space of a few weeks this past term, the New Jersey Supreme Court issued insurance coverage opinions that have significant impacts on insureds, in a case without an insured’s participation. Farmers Mutual, the latest N.J. Supreme Court insurance coverage case without an insured party, resolves the question of whether, or when, the insurance allocation “shares” of an insolvent carrier may be assigned to the State’s Guaranty Fund under the Supreme Court’s Owens-Illinois/Carter-Wallace insurance policy allocation methodologies developed in prior cases of those names.  Read Entire Article

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Foreclosure Alert

Posted on Tuesday, November 26, 2013 by Joseph G. Ragno

Residential mortgagees state-wide could be heard to breathe a sigh of relief upon the announcement of the Appellate Division’s decision in Deutsche Bank National Trust Co. v. Russo 429 N.J. Super. 91 (App.Div. 2012). Russo has sparked much discussion about the issue of standing in residential foreclosure actions and while it does represent welcome news in the lending community, it does not relieve lenders from the obligation to employ best practices in the pre-foreclosure stage. Read Entire Article

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POTOMAC INS. CO. V. PENNSYLVANIA MANUFACTURERS’ ASS’N INS. CO.

Posted on Tuesday, October 22, 2013 by Mark J. McPherson

The New Jersey Supreme Court determined that insurance carriers who fund and control the defense of a claim have a direct right to seek contribution against other insurance carriers who disclaim and decline to participate in the defense of a common insured.  Read Entire Article

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Complicated & Convoluted: New Jersey’s Pay-to-Play Laws

Posted on Monday, August 12, 2013 by David A. McPherson

The State, County and municipal governments are hardly on the same page when it comes to their pay-to-play regulations. They do agree that a “business entity” should be precluded from obtaining a government contract if that entity has given a contribution to a candidate for elective-office or elective-office holder within a certain time period in certain instances. They do not agree upon what a “business entity” or “contribution” is, when contributions are prohibited, or the amount of the contribution which disqualifies a vendor. Read Entire Article

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NEW JERSEY SUPREME COURT ALLOWS EVIDENCE OF NON-SPECULATIVE, REASONABLY CALCULABLE BENEFITS IN EMINENT DOMAIN VALUATIONS

Posted on Friday, August 02, 2013 by Eric D. McCullough

On June 28, 2013, this article discussed a recent case argued before the Supreme Court of New Jersey, Borough of Harvey Cedars v. Karan. That case involves what evidence may be considered by a jury when calculating the damages to the remainder in a partial taking. As previously explained, the Harvey Cedars case concerns a partial taking along the seaward side of oceanfront property for purpose of constructing an expanded sand dune to protect Long Beach Island from storm damages. Read Entire Article

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UNINSURED/UNDERINSURED MOTORIST COVERAGE

Posted on Thursday, July 25, 2013 by Giovanni  Regina

Underinsured/Uninsured Motorist Insurance Coverage is one of the most important types of coverage in an auto policy. Besides basic coverage, all auto policies are required by New Jersey law to have underinsured/uninsured motorist coverage in the minimum amount of $15,000 per person/$30,000 per accident.  Read Entire Article

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SUPREME COURT OF NEW JERSEY CONSIDERS TRIO OF EMINENT DOMAIN CASES

Posted on Friday, June 28, 2013 by Eric D. McCullough

In the 2012-2013 Court Term, the Supreme Court of New Jersey considered three cases, each involving issues relating to the exercise of eminent domain. The decisions in these cases will have impacts on the right to utilize condemnation and the relevant issues to be decided when setting the just compensation purchase price. Read Entire Article

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THE NEW JERSEY CONSTRUCTION LIEN LAW -- IF YOU DON’T KNOW WHICH WAY TO STEER YOU WILL RUN AGROUND

Posted on Wednesday, May 22, 2013 by Nicholas I. Filocco

The New Jersey Construction Lien Law (CLL) was last amended in 2011. Like many multi-faceted legislative schemes, it has several ambiguities, and procedural quirks that must be avoided to enforce the rights of the unpaid contractors, or those of a project owner faced with claims of unpaid contractors or material suppliers. Read Entire Article

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Recent State Supreme Court Decision on Connection Fees

Posted on Wednesday, March 13, 2013 by E. Neal  Zimmermann

The State Supreme Court recently decided a major case regarding connection fees for wastewater treatment plants and collection systems: 612 Associates v. North Hudson Sewerage Authority. Read Entire Article

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