Real Estate Litigation

We apply our cumulative knowledge and resources to deliver creative and focused counsel in negotiating and litigating commercial and residential real estate-related disputes including: zoning and planning, prerogative writ, mandamus, quiet title, riparian rights, deed and covenant restrictions, adverse possession, tax and mortgage foreclosures, condemnation/eminent domain, property tax appeals and assessment challenges, tax certiorari proceedings, tax exemption disputes, easement disputes, valuation litigation and disputes, commercial eviction and landlord-tenant proceedings, disputes involving claims for real estate brokerage commissions, disputes representing title insurance companies or their insureds, and disputes involving sales of real property. We consistently help clients assert and protect their property interests under extraordinarily difficult and complex circumstances. Indeed, our experience, if called upon prior to the need for litigation services, can assist our clients in ultimately avoiding litigation.

Moreover, the many years of experience and wisdom honed by our tax, real estate, and litigation attorneys affords our residential, commercial, industrial, municipal, and nonprofit clients with the comprehensive and cost-effective representation needed to maximize the value of their real property assets by successfully litigating disputes involving real property. Our real estate litigation experience runs the gamut, and includes appeals before and from local boards and agencies, administrative matters, cases before trial and appellate courts, tax courts, state Supreme Courts, as well as United States District Courts and Circuit Courts of Appeal.

We have substantial experience in handling disputes involving large corporate headquarters and complexes, office complexes/high-rises, industrial structures, multi-use facilities such as hotels, casinos, conference centers, large tracts of vacant land, large residences, charitable properties, telecommunications facilities, as well as research and laboratory facilities and special purpose properties. We have advised several charitable, community, and educational nonprofit organizations with regard to exemptions from taxation on their real property, as well as with regard to their rights vis-?-vis the network of state and federal laws which protect religious and charitable institutions from discrimination. In addition, we have also litigated and consulted with clients relative to the property taxation of business equipment, intangibles and easements. We have developed an interdisciplinary practice together with our Real Estate department involving the resolution of problems faced by lenders when confronted with tax sales and tax foreclosures. Members of our group have significant involvement in the state and local tax arenas in the jurisdictions in which we practice, including service on committees and task forces dealing with tax issues and tax legislation. The many years of experience and wisdom honed by our tax, real estate, and litigation attorneys affords our residential, commercial, industrial, and nonprofit clients with the comprehensive representation needed to maximize the value of their real property assets by successfully reducing their property tax assessments.

Day Pitney has represented a broad spectrum of condemnation clients for many years. These clients have included landowners, business tenants, contract purchasers and licensees. In relation to developed properties, we have represented flagship regional shopping malls, single location retail merchants, a compressed gas company, a stone quarry, an international automotive parts manufacturer (warehouse), and telecommunications companies. We have consistently achieved premium results for our condemnation clients ranging from awards of several hundred thousand dollars to $25 million.

We have successfully accomplished premium results in contested condemnation hearings. In one instance, we forced the condemning authority to abandon proceedings and reimburse our client for $150,000 in attorneys' fees and expert fees. We have close working relationships with deputy attorneys general who represent the State of New Jersey Department of Transportation in condemnation matters. These working relationships allow more effective, more efficient, and less time-consuming resolution of condemnation matters. We are also well experienced in redevelopment, municipal, New Jersey Turnpike and New Jersey Transit takings. For redevelopment projects, our condemnation lawyers work together with municipal counsel to develop and pursue the most effective plan for gaining title to blighted properties designated for redevelopment. Together with our environmental lawyers and their engineers and consultants, we are also particularly well-suited and experienced in the complex legal and valuation issues arising from the taking of environmentally impacted properties. We work with experienced appraisers, planners, and engineers in connection with valuation issues and in connection with land use and site planning issues generated by total and partial takings as well as site reconfigurations.

In an effort to provide our clients with the most efficient service, we have developed a databank of forms and research, resulting in a significant reduction in the amount of time we need to spend gathering and preparing these documents. We have a network of experts to engage based upon our clients' specific needs, including appraisers, economists, casino experts, auto industry experts, brokers, architects, planners, engineers, traffic experts, environmental experts, and many more.

Our record of success at trial in high-profile matters is compelling, and therefore, litigation, once instituted, often results in favorable settlements for our clients prior to trial. For many of our clients, the favorable settlement of a real property tax appeal, condemnation or eminent domain proceeding, or lease dispute, translates into millions of dollars in favorable bottom-line results.

Representative Real Estate Litigation Matters

• Successfully defended the developer of a $185 million mixed-use project in a series of federal and state suits and administrative appeals brought by or on behalf of a NYSE shopping mall developer. West Farms Mall LLC v. Town of West Hartford, et al., 279 Conn. 1 (2006)
• Defense of an action against a financial institution by a major general contractor based on claims arising out of a $246 million loan for the construction of a hotel and office complex.
• Defense of an action against a financial institution by the Attorney General of the State of New York and a homeowners association seeking damages in excess of $25 million and the remediation of a contaminated site.
• Prosecution and defense of numerous actions on behalf of financial institutions arising out of various loan transactions and relationships.
• Defense of actions against a financial institution seeking to recover in excess of $4 million in broker fees arising out of the sale of a hotel and office building.
• Represented the owner of a multimillion dollar home in an adverse possession action against an abutting neighbor. The neighbor claimed that a large portion of the client's property, which had been maintained by the client and the previous owner for more than 20 years, was actually part of the neighbor's property. The matter was resolved favorably for the client, who gained clear title to the disputed area.
• Defended a trustee in a breach of fiduciary duty and breach of trust action involving the allocation and distribution of commercial real estate in Massachusetts and New Hampshire that were the sites for two gas stations. The matter was complicated by ongoing environmental remediation at one of the properties due to an oil leak. Settled case favorably for client after mediation and several months of negotiation, selling one of the properties for market value, leasing the other, and securing full environmental indemnities on both properties.
• Successfully defended a client relative to an adverse possession claim in connection with land on an island, as well as prescriptive rights over pathways, wherein after a jury trial the jury denied the claimant half the possession claim advanced, and denied prescriptive rights for one of two pathways.
• Successfully defended a client from a claim of application of a deed restriction/restrictive covenant from the 1950s allegedly restricting the use of the property to certain uses.

Representative Real Estate Tax Appeal Matters

• Industrial Center - The firm handled tax assessment appeals on a 1.7-million-square-foot industrial center on 30 acres, and obtained a reduction, through settlement, from $24 million to $16 million for the first four tax years, and then to $14 million for four additional years, and finally to $10 million through 2006, resulting in significant tax savings to the client.
• Assembly Plant - The firm handled tax assessment appeals on a 1-million-square-foot assembly plant on approximately 72 acres, which was assessed between approximately $28 million and $55 million. The higher assessments were ultimately reduced to $40 million following a settlement.
• Oil Storage Terminal - The firm handled the appeals of tax assessments on an oil storage and unloading facility which was originally assessed at $14.14 million. The assessments were reduced to $11.6 million pursuant to a settlement.
• Corporate Headquarters - The firm handled the tax assessment appeals on a 550,000-square-foot corporate headquarters facility on approximately 195 acres. The assessments at issue were approximately $53.2 million. After a trial, the Tax Court reduced the assessment at issue to $46.9 million.
• Back Office - The firm handled the tax assessment appeals on 580,000 square feet of office space on approximately 201 acres of land. The assessments at issue were approximately $78 million, and the matter settled favorably with a substantial reduction for the taxpayer.
• Hotel - Original assessments on an airport hotel of a major hotel franchise was reduced from $52.3 million to $48 million in connection with a settlement of the tax appeals.
• Casinos - The firm has represented three major casino operators in connection with tax appeals on casinos and casino-zoned land in Atlantic City, many with assessments in excess of $100 million, resulting in significant tax savings to our clients, including one matter resulting in a refund of $7.2 million to the client, believed to be the largest property tax refund at the time.
• Retail - The firm represented a major regional retail developer in connection with a regional shopping mall with property assessed at $34 million. After settlement, the firm obtained a reduction in the assessments to between $28.5 million and $32 million, resulting in significant tax savings to the client.

Representative Redevelopment, Condemnation, Eminent Domain and Valuation Matters

• Representation of owner of flagship regional shopping mall in New Jersey Department of Transportation condemnation. This matter arose from the reconfiguration of three major New Jersey highways. The highway project affected 3 sides of this property and was constructed on an expedited schedule. In addition to traditional valuation issues, this matter involved difficult issues related to changes in site access, maintaining full access during the construction process, protecting environmentally sensitive areas of the property, managing changes in parking and circulation on this heavily developed parcel, granting easements for adjoining affected landowners, and preserving future development options for the parcel involved.
• Representation of owner of computer sales and service retailer at a highway intersection. This matter arose from a New Jersey Department of Transportation condemnation due to a road widening and intersection reconfiguration. The property owner's highway access, which was necessary to the retail component of the business, was taken and not replaced, thus downgrading and changing the uses for the parcel. After full condemnation hearings, our client received a substantial award. We also assisted the client with purchasing a new site to which the business could be relocated and later assisted in acquiring a parcel adjoining the original site which then allowed the client to restore his highway access.
• Representation of major pharmaceutical manufacturer in connection with New Jersey Department of Transportation condemnation. The property being condemned was at the lone entrance to one of the pharmaceutical company's primary manufacturing, research and development facilities. In addition to price negotiations, this matter involved maintaining access during construction and relocating facility entrance signs, including obtaining sign variances necessary to relocate those signs.
• Representation of the owner of a stone quarry in Connecticut. The State of Connecticut sought to use its eminent domain power to eliminate what it considered to be an undesirably located quarry. This matter involved a possible challenge to whether the proposed taking was legitimate and serious issues related to relocation because the underlying business could not be relocated. The matter was resolved without litigation at a very favorable price for our client. The resolution included a contract with the condemning authority that required the condemning authority to purchase all necessary stone for the nearby highway construction project from our client until the quarry was finally taken and closed.
• Representation of an international automotive parts manufacturer in connection with a New Jersey Department of Transportation condemnation of the client's East Coast distribution warehouse. In addition to price negotiations, this matter involved a redesigned site plan and a new site circulation plan. The matter was resolved at a very favorable price for our client. This matter was particularly challenging because it involved a long-standing triple net lease. Over time, the lease had become unprofitable to the landlord who sought to use the condemnation as a way to attempt to break the lease. In addition to other tactics, the landlord also incited local residents to resist the new site plan which was required because of the taking. The landlord, however, was unsuccessful.
• Representation of wireless communications companies. We regularly represent our wireless communication clients in condemnation matters where owned sites, site leases, or site licenses are entirely taken or partially taken due to condemnation. These matters frequently involve substantial relocation issues because of the significant expense of the radiofrequency engineering costs necessary to develop a cellular telephone site or a relocated site.
• Representation of redevelopers and municipalities in connection with redevelopment projects, which involved condemnation and eminent domain proceedings, including the negotiation of redevelopment agreements, advising on valuation for acquisition, drafting financial agreements, and PILOT (payments in lieu of tax) agreements. The following are examples of such representations:
• Lead counsel to the developer of the Blue Back Square project in West Hartford, CT, a state-of-the-art $185 million project comprising over 500,000 square feet of retail shops, restaurants, cinemas, residential condominiums, and office space. In this role, we handled all aspects, including municipal bond issues, environmental investigation and remediation, zoning and wetlands approvals, permitting, property acquisitions, joint venture agreements, financing, condominium documents, and related litigation, including appeals.
• Counsel to a national REIT for acquisition of vacant land, environmental remediation, due diligence and litigation, including golf course development, residential condominium development and complex redevelopment of a former Air Force base for multifamily housing.
• Appellate counsel for the Connecticut Conference of Municipalities and 31 other state municipal leagues as amicus curiae in Kelo v. New London, a landmark case decided by the U.S. Supreme Court. The Supreme Court held that a municipality can use its power of eminent domain to take property for economic development.
• Counsel to a public utility company with respect to the planning and ongoing construction of a liquefied natural gas facility in Connecticut, including assistance with contract negotiation and environmental, real estate, land use, and commercial matters.
• Counsel to academic institutions for development of magnet schools, performing arts center, gymnasiums and other academic buildings, including brownfields redevelopment, construction and architectural contracts, ground leases, tax-exempt bond financing, land use applications, and tax appeals.
• Counsel on environmental remediation and permitting matters to the private developer partnering with the town and state on a mixed-use development on an abandoned, 35-acre brownfields site in Connecticut. Planned construction includes a new commuter rail station and commercial office, hotel, retail, and parking facilities.
• Counsel to a global manufacturing corporation and owner of a former manufacturing facility in Colorado in connection with successful negotiation of liability and property transfer, providing for remediation and residential redevelopment of facility location.
• Counsel to a major public corporation on environmental and deal-related issues in connection with disposition of multiple former manufacturing locations in the Southwest.
• Counsel to national developer of regional shopping centers for environmental remediation and permitting issues associated with $100 million redevelopment in Connecticut, which required a $35 million cleanup.