Commercial Real Estate Blog by Madison
Author Archives: Terence P. Guerriere, Esq.

Boundary Trees, Where to Draw the Line….

By Terence Guerriere, Esq., Executive Vice President, Madison Commercial Real Estate Services

In a world where party walls, air rights and subway easements can sometimes make life in real estate somewhat complicated, I took a moment to breath in some fresh spring air and contemplate the beauty of the world around me. I started to focus on a magnificent oak tree, its large spreading branches and its wide trunk, and let my mind wander… to the law of boundary trees, of course!

It can be an innocent act; even a noble one. A tree is planted. Or, a wayward seed floats to the surface from a branch above, lands and takes root. Regardless, with either of these simple acts, a contentious lawsuit can also take root. It likely will take years, sometimes generations, to come to fruition (pun intended). However, one person’s bucolic shade and privacy can become another’s annoyance and nuisance!

So who has ownership of and responsibility for boundary trees, trees that grow on or near the boundary line between adjacent properties? Who has the legal right and responsibility for the removal or care of such trees? Continue reading

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Railroad Easements… Marvin M. Brandt Revocable Trust v. United States – Part 2

By Terence Guerriere, Esq., Executive Vice President, Madison Commercial Real Estate Services

In my last post, I wrote about how three seemingly unrelated things led to me to think about railroad easements. First, I’d recently read Robert L. O’Connell’s biography of William Tecumseh Sherman. I also visited the High Line elevated park in Manhattan and I’m following a local property owners’ group battle to stop the taking of a public street to facilitate, in part, the establishment of a land conservancy. I explored how granting rail companies land in the 1860s, converting an old railway into a park and a neighborhood fight to stop the taking of property in connection with a planned conservancy led to a collision that resulted in a Supreme Court case.

But I left a cliffhanger…. and did not divulge the Supreme Court’s decision on the issue. Here’s the outcome. Continue reading

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Railroad Easements… A Controversy 130 Years in the Making

By Terence Guerriere, Esq., Executive Vice President, Madison Commercial Real Estate Services

Three seemingly unrelated things led to me to think about railroad easements and this post. First, I recently read Robert L. O’Connell’s biography of William Tecumseh Sherman. I also visited the High Line elevated park in Manhattan and I’m following a local property owners’ group battle to stop the taking of a public street to facilitate, in part, the establishment of a land conservancy. How are these related to a discussion of railroad easements?

From O’Connell’s book, I learned of Sherman’s significant role in the planning and construction of the first transcontinental railroad. Not only was General Sherman a Civil War hero, he also worked after the war to help his former soldiers gain employment building the railroads. This pro-railroad stance included supporting the federal government’s generous land grants to the railroad companies.

The High Line is a beautiful walking trail situated on a former abandoned elevated railroad line on Manhattan’s West Side. After years of debate, the establishment of this linear park has spurred significant development beneficial to those visiting the High Line and the city’s real estate developers.

The purchase of a former country club property by a private day school has led to seeking the discontinuance of a public street which dissects part of the property. The street also serves as an important access point to the neighborhood of private homes which surround the property. The school’s plan includes a land conservancy for part of the property but only if the school is granted permission to construct its multiple building campus.

How did granting rail companies land in the 1860s, converting an old railway into a park, and a neighborhood fighting to stop the taking of property in connection with a planned conservancy collide and result in a Supreme Court case? These three isolated items coalesced in my head to inspire thoughts of railway easements and why they have become so controversial. Continue reading

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Isn’t it Time to Jettison Adverse Possession Laws?

By Terence Guerriere, Esq., Executive Vice President, Madison Commercial Real Estate Services

Adverse possession is a method of acquiring title to real property by possessing it for a statutory period under certain conditions. The doctrine of adverse possession has been a part of American law since the founding of our country; a precept of western civilization’s legal system for centuries. However, perhaps it is time to recognize that the idea that an owner of real property should lose title to his land, simply because someone else has been using it, is a relic of the past.

The primary reason for the development of adverse possession law was to promote the productive use of property. If an absent owner did not tend to his land, the land would not produce food or other benefits for society. This certainly made sense during the time of an agrarian society. Today, however, there is little fear that we would not be able to feed, clothe and house our citizens by allowing land to lay fallow.
Is it time to lift the burden from the land owner of record and shift it to the possessor of land he doesn’t own?
Continue reading

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The Primary Difference between a Prescriptive Easement and Adverse Possession is the Intent

By: Terence Guerriere, Esq., Senior Vice President, Madison Commercial Real Estate Services

Have you ever pulled up to a shopping center to run a quick errand, and discovered that there is nowhere to park? Rather than give up on the idea of sesame chicken, did you park your car in the connecting shopping center next door, and then walked over to pick up your Chinese takeout? If so, you took advantage of a prescriptive easement.

It is very commonplace in suburban America to find parking lots that run into each other, effectively allowing a driver to move from one shopping center to another without needing to use the nearby road.
What is less common is the understanding of the difference between prescriptive easements and adverse possession. Continue reading

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The Tax Benefits and Spread of Conservation Easements, Part 2

By: Terence P. Guerriere, Esq., Senior Vice President, MCRES

For some, conservation easements may represent an opportunity to emulate Henry David Thoreau, “I went to the woods because I wished to live deliberately, to front only the essential facts of life” (Walden). Conservation goes a long way towards protecting the natural world for future generations, by preserving species and their habitats.

Conservation easements also offer a significant benefit to taxpayers. After last week’s discussion on meeting the IRS requirements in order to qualify for conservation easement, let’s evaluate how a conservation easement impacts the property owner’s bottom line. The benefits may explain why conservation easements are growing. Continue reading

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Qualifying for Conservation Easements, Part 1

By: Terence P. Guerriere, Esq., Senior Vice President, MCRES

In the world of commercial real estate, conserving nature goes beyond protecting environmental resources. When structured correctly, conservation easements can ensure renewable resources for future generations, and provide some monetary advantages for the here and now. Under certain conditions, conservation easements are recognized by the U.S. Internal Revenue Service (IRS). If IRS requirements are met, the landowner may qualify for certain tax incentives.

Just exactly what is a ‘conservation easement’ and what are the IRS requirements for a
parcel of land to qualify for conservation easement? Continue reading

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Land Record Secret Revealed: A Property in New York With No Owner

By Terence P. Guerriere, Esq.
Director of New York Operations, Madison Title

Real Estate attorneys and other real estate professionals certainly remember the first time a title commitment was issued by their friendly neighborhood title company with the commitment showing an unexpected former owner of record/seller. It can be disconcerting and typically leads to some difficult discussions with the seller and/or borrower.

What is most interesting is that this happened recently in, of all places, New York. Imagine the level of surprise and disbelief by everyone when Madison Title issued a title commitment indicating that no one had previously owned the property! How could this possibly happen in the greater New York metropolitan area? Continue reading

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Is Greenwashing LEEDing the Way?

Those involved in the real estate business — whether it’s the property owners or the lenders or the advisors and service providers to those owners and lenders — are becoming increasingly (though sometimes reluctantly) familiar with terms such as LEED accreditation, Brownfields and sustainability. The growing emphasis on the environment is obvious to us all.. a focus that will not be ignored. Since the first Earth Day in 1970, what used to be referred to quaintly as the “environmental movement” has grown into a central component of our lives. Being “green” is certainly accepted and generally considered “cool”.

There is another term associated with the environment has gained traction recently – “Greenwashing”. Greenwashing is derived from the combination of Green (environmentally friendly) and whitewashing (to cover up) and is defined in the Oxford English Dictionary as “disinformation disseminated by an organization so as to present an environmentally responsible public image”. Continue reading

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Have MERSy, Please!

Whether we like it or not, we will be hearing much more about the Mortgage Electronic Registration Systems (MERS) as the year progresses. Established in 1995, MERS’ shareholder roster reads like a list of the nation’s large financial institutions.

MERS was established to facilitate the mortgage backed securities (MBS) market through the elimination of the time-consuming and expensive practice of recording assignments in the local county clerks’ offices. Other than the faint moans and groans of the local practitioner (legal and title), the real estate finance world’s plan for a private, electronic mortgage registration system went forward without much complaint. Things have changed. Currently, the MERS website cites more than 200 decisions in lawsuits against MERS in the past six months. Continue reading

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