Real Estate and Land Use

Our commercial real estate practice grows out of our broader environmental law practice. Landowners and prospective landowners look to our attorneys to help them navigate the environmental issues affecting their properties and business operations. For example, our services include:

• Phase I Site Assessments—We assist clients by evaluating environmental conditions and liabilities identified during Phase I Environmental Site Assessments, steering them through certain applicable state laws and obtaining environmental and related permits from governmental authorities.
• Soil and groundwater contamination—In cases where environmental impacts such as soil or groundwater contamination are identified, our attorneys help clients to understand the extent of their environmental obligations and the ways that environmental obligations and liabilities can be managed in the course of a real property transaction.
• Permitting and advocacy—We frequently appear before environmental agencies, county planning boards, and municipal construction departments in connection with permitting issues. We regularly assist our clients in obtaining various state, federal, and local permits and approvals for coastal, waterfront, and wetlands development, and flood hazards. Our attorneys also are experienced in obtaining and advising our clients about compliance with complex operational permits, including those for solid waste, hazardous waste and landfills, ground water, surface water and storm water discharges, sewage connections and treatment, air emissions, and recycling. While our attorneys seek to resolve issues at the initial level, we appear before legislative boards and zoning boards of appeal, as well as in trial court and appellate courts, concerning such matters.
• Transactions and environmental due diligence—We routinely provide advice to our clients in the areas of conducting and assessing environmental due diligence, drafting purchase and sale documents, and strategizing to reduce environmental exposure. We also advise lenders and borrowers on environmental matters arising from default and foreclosure, including lender liability protection under federal and state law and the application of permits and approvals from governmental authorities to address construction and development issues.
• Counsel on emerging unregulated contaminants—As leaders of the national discussion surrounding key emerging environmental risks as they relate to unregulated contaminants (notably per- and polyfluoroalkyl substances (PFAS) and 1,4-Dioxane, our team constantly tracks the jurisdictional trends in federal and state guidance and regulation pertaining to these and other substances. We understand the contaminants and the science, the potential exposure routes, and the plaintiffs’ bar’s innovative techniques, and have developed strong and strategic defenses. Our attorneys also offer advice to clients with respect to complex compliance issues, as certain states have set maximum contaminant levels (MCLs) and we anticipate many other states will follow suit.

Our corporate and transactional attorneys regularly assist clients with all aspects of commercial land use transactions, along with other multimillion- and billion-dollar mergers, acquisitions, and financing arrangements, often involving real property. Our team can identify and assess the risks and liabilities in transactions and how to structure deals to achieve our clients’ objectives. In the commercial real estate realm, our experience includes:

• Preparation of letters of intent
• Due diligence process
• Drafting and negotiating purchase agreements
• Commercial loan agreements (term, demand, and revolving) and ancillary documentation including promissory notes; opinions of counsel; and inter-creditor, subordination, errors and omissions, and security and indemnity agreements
• Land use and zoning issues, including New York Article 78 actions
• IRS Code §1031 “like-kind” exchanges
• Commercial leases (gross leases; single, double, and triple net leases; and modified gross leases)
• Construction agreements focusing on AIA contracts, owner-architect, contractor and sub-contractor, and development agreements

Our advice on regulatory compliance and risk management has allowed our clients to avoid fines, violations, and penalties, as well as costly litigation and administrative hearings. We have developed comprehensive audit programs and environmental management systems for entire industry sectors and have achieved significant savings for our clients—more than $50 million in fines avoided—while also providing valuable guidance to ensure continued compliance. We have extensive experience with the Environmental Protection Agency (EPA) Self-Audit Policy, having continually guided participants through the agency’s intensive audit and disclosure process and helping them minimize risks to human health and the environment. We help our clients develop strategies for addressing compliance issues to ensure environmental safety and adequately respond to government inspections and enforcement actions.

Our attorneys are skilled at helping to bring redevelopment projects to fruition. We assist our clients in every stage of brownfield redevelopments—from acquisition and financing to remediation and development. We participate in the planning, negotiating, permitting, funding, remediating, constructing, insuring, and redeveloping of environmentally impaired properties.

Goldberg Segalla has significant experience advising and defending both owners and lenders under title and other insurance policies. Attorneys in our Commerical Litigation and Arbitration practice routinely handle matters involving:

• Title and priority issue litigation concerning property line disputes, mechanic’s liens, easements, notices of pendency, and adverse possession claims
• Mortgage fraud, fraudulent real estate conveyances, and forgeries
• Equity analysis surrounding mortgages, property liens, and subrogation
• Bankruptcy proceedings involving motions to lift stays and advisory proceedings
• In rem tax proceedings and foreclosure sales
• Lobbying efforts to resolve issues with prior governmental properties
• Coverage investigation, response, recoupment, and litigation
• Expert opinions in bad faith litigation

Goldberg Segalla’s real estate team has handled many tax certiorari matters, achieving successful results for municipalities across multiple jurisdictions. We routinely oversee property tax certiorari matters for municipalities involving Real Property Tax Law (RPTL) Article 7 and Small Claims Assessment Review (SCAR), and have appeared before the court in precedent-setting cases impacting BAR and SCAR proceedings, as well as often-cited matters on property assessments.

Our attorneys regularly advise and represent condominium and homeowner’s associations in sensitive and complex real estate matters. We bring an exceptional understanding of the legal issues and unique stressors involved in these matters, as several Goldberg Segalla partners are members and officers in homeowners’ associations across our national footprint. Our experience covers matters related to:

• AirBnB and short-term rentals
• Architectural review
• Board directors and officers (D&O) claims, including claims of mismanagement, self-dealing, trade violations, and breach of fiduciary duty
• Construction and development
• Declarations and by-laws in the context of foreclosure and specific performance proceedings
• Fines for members and individual unit or property owners
• Injunction matters related to response to flooding, fires, and other naturally caused damages
• Insurance coverage
• Litigation involving individual property owners, municipalities, and other parties

Goldberg Segalla’s Real Estate and Land Use team has helped clients meet the challenges of the COVID-19 pandemic and prepare for the novel regulatory, economic, and litigation-related needs and concerns that have emerged in its wake. We collaborate fluidly with attorneys across practices including Environmental Law, Construction, Commercial Litigation, Retail, Employment and Labor, Workers’ Compensation, General Liability, and more to provide holistic counsel accounting for all of the various business implications of real estate and land use decisions related to COVID-19. Aside from providing day-to-day counsel for clients in industries like construction and development, commercial real estate, retail and hospitality, health care, manufacturing, and more, we have also kept our entire client community up to date with articles, timely alerts, blog posts, presentations, and webinars on critical emerging topics related to COVID-19 environmental compliance. Our experience includes:

• Navigating the challenges facing active remedial sites and essential personnel issues, and the various directives at play
• Addressing  compliance issues and reporting requirements to federal and state agencies given the fluid environment
• Managing the health and safety of personnel, residents, and visitors at commercial real estate premises or worksites in the COVID-19 climate
• Ensuring that buildings and spaces are safe to reenter and occupy prior to restarting a company’s operations