Attorney’s routinely circulate contracts via email, fax, and in counterparts (pages signed by different clients at different times).   When we do, we tend to add paragraphs to the agreement allowing for “execution in counterparts” and “electronic transmission.”   Just to make it clear, this deal is going to stick!

We do these things because of a law called the “statute of frauds,” which requires contracts for the conveyance of real estate (among other things) to be in writing.  Apparently, in the olden days there was a brisk trade in verbal real estate deals, lots of spitty handshakes I’d imagine.  Shudder.

Of course, the inevitable question in today’s modern era is, what is a writing?  Is an email a writing?  A fax?  An IM?  A tweet?

In a noteworthy recent case, Naldi v. Grunberg, the court expressed its willingness to find an enforceable option contract in a series of emails between real estate brokers.  The court ultimately concluded that the emails in question failed to demonstrate that the parties had achieved a good old-fashioned “meeting of the minds,” since they weren’t yet on the same page about material terms such as price.

However, as to the contention that it was “just an email,” the court gleefully cited a long line of cases in support for the position that an email could meet the requirements of the statute of frauds, and bind all concerned.

To avoid this potential pitfall, my fellow real estate professionals, of all stripes, negotiating deals via email, text or tweet, might consider adding a standard disclaimer to their communications that the e-mail in question creates no binding obligations and advising the recipient of the need to memorialize whatever deal they think they might have struck in a signed written agreement.  Skip the spitty handshake.

The Appellate Division of the Supreme Court of New York, First Department, recently held that, when a rental building is being converted to condominium ownership by means of a non-eviction offering plan, unregulated tenants whose leases expire prior to the offering plan being declared effective by the Attorney General are not entitled to protection from eviction under the Martin Act.

In MH Residential 1, LLC, et al. v. John Barrett, et al., the owners of a large residential building proposed a non-eviction offering plan to convert the building from rental to condominium ownership. Of the 29 market-rate tenants whose leases had expired, only 11 had been offered renewal leases. However, the tenants argued that the renewal offers were not bona fide offers because the leases were shorter (3-12 months) and sought rents that were substantially higher than those previously paid, in some instances nearly double the previous rents. The offers also gave the landlord the right to terminate the lease extension on only 15 days’ notice and to compel the tenants to relocate to another apartment at the same rent, regardless of the new apartment’s size, location or condition. The owners brought holdover proceedings against the 29 unregulated tenants. Once the offering plan was accepted for filing on March 31, 2007, the tenants claimed entitlement to protections under the Martin Act.

The Martin Act states that, under a non-eviction offering plan, eviction proceedings shall not be commenced against non-purchasing tenants for failure to purchase or for any other reason related to expiration of the tenancy. The Martin Act defines “non-purchasing tenant” as a person who has not purchased under the offering plan and who is entitled to possession at the time the plan is declared effective.

The First Department decided in favor of the owners, explaining that, in holdover matters regarding unregulated expired leases, the tenant’s rights have already been extinguished by the expiration of the lease term, and it is irrelevant that the tenant may still be in possession and that a warrant of eviction has not yet issued. Therefore, the tenants in this case were not “entitled to possession” at the time the plan was ultimately declared effective.

Lewis & Hand, LLP is pleased to announce that Roberto Ledesma, a former Examining Attorney with the United States Patent and Trademark Office, has joined our staff Of Counsel.

The New York Bar Association’s Committee on Professional Ethics announced recently that it is not per se unethical for lawyers to comb social networking websites to collect information about opposing parties in litigation. While the Committee cautioned lawyers not to engage in deceptive or misleading conduct by gaining access through a third party or otherwise deceiving the opposing party into an online “friendship,” any information made accessible by that party to all members of the network is fair game.

Due to a default judgment, New York-New York Hotel & Casino is now the proud owner of the lucrative geographic domain name, newyorknewyork.com. On November 6, 2009, the MGM Grand, Inc. hotel chain filed a cybersquatting and trademark infringement lawsuit against California resident Ronnie Katzin and his wholly-owned corporation, NewYorkNewYork.com, Inc., regarding the domain name. The hotel chain based its cybersquatting claim on the fact that MGM Grand, Inc. announced the hotel-casino in 1994, filed two trademark applications for NEW YORK NEW YORK on September 13, 1995, and Katzin registered the domain name three months after the trademark filings. What the hotel chain didn’t say is that these registrations were initially denied, and they only obtained them after gaining acquired distinctiveness. The trademarks were finally registered in September 1998, a full year after Katzin had developed the domain name into a comprehensive travel website. Therefore, there was no way the mark “NEW YORK NEW YORK” could have been distinctive at the time of the Domain Name was originally registered, which alludes to a complete absence of cybersquatting.

The real lynchpin in the case occurred when Katzin was alleged to have put up a banner ad that displayed “New York-New York Hotel & Casino,” which visitors could click on and make reservations to that hotel or other hotels in the Las Vegas. According to Katzin, this image linked to a room-booking website operated by Expedia’s Interactive Affiliate Network, which has a deal to sell MGM Mirage rooms. It appears that once the banner ad went up, the hotel chain dove in immediately to file the lawsuit, even though there was dubious infringement, at best. Sadly, because Katzin could not afford legal counsel, the hotel chain was able to use legal process to gain transfer of a domain name worth an estimated $100,000 and a judgment for $100,000 in damages.

The WIPO Arbitration and Mediation Center, one of the primary domain name
dispute resolution forums, reports that the number of UDRP filings submitted
during the first four months of this year exceeds all previous records. In
2008, WIPO recorded its highest number of domain name filings in a single
year. The number of filings in the same period for this year outstrips 2008
by 40 filings. The numbers also show a 21% increase in the number of
filings relative to the same period in 2009. Erik Wilbers, Director of the
Center, attributes the trend at least in part to WIPO’s introduction of the
eUDRP, which for the first time has allowed for paperless UDRP filings.

The Academy of Motion Picture Arts and Sciences filed a 134-page lawsuit against domain registrar GoDaddy.com and its subsidiaries for alleged trafficking in unauthorized trademarks. Suing under the Anticybersquatting Consumer Protection Act, the Academy disputes more than 100 domain names, including 2011oscars.com, academyawardz.com, jaylenososcars.com, betacademyawards.com, oscarsunplugged.com, oscarshotels.com, oscarstravel.com, oscarsliveblogging.com and more. Damages could total as much as $10 million.

thresq.hollywoodreporter.com/2010/05/academy-oscars-godaddy-mass-cybersquatting-lawsuit-.html