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  • Aug 22, 2019Pennsylvania Updates Legislation on Adverse Possession as of June 19, 2019

    By: John F. Lushis, Jr.

    Pennsylvania, like many states, has laws relating to adverse possession.

    What is adverse possession?

    Adverse possession is a method of acquiring title to real property by possession for a specified period under certain prescribed conditions. Historically, to acquire title by adverse possession in Pennsylvania, a party must have actual, continuous, exclusive, visible, notorious, and hostile possession of the property after a minimum of 21 years. While these words come across as heavily “legal” and perhaps complicated, these core elements of adverse possession are pretty straightforward.

    Actual possession occurs when a trespasser is on and using property owned by another. “Continuous” means that the trespasser is using the property without interruption for the 21-year period. If the property in question is sold, the adverse possessor can “tack” together the periods of different ownership to achieve the 21-year requirement.  A “hostile” use of the property occurs when the rights of the owner and the adverse possessor’s use are in conflict. If the owner gives permission to use his property, adverse possession cannot occur. To satisfy the visible and notorious requirement, the adverse possessor’s use of the owner’s property must be public. This allows an owner the opportunity to discover the adverse possessor’s use and take legal action, if necessary to end such use. For exclusive possession to occur, the adverse possessor must prevent or exclude others from using the owner’s property.

    What did Pennsylvania update?

    Pennsylvania has enacted legislation that became effective on June 19, 2019, which provides for a 10-year (as opposed to 21-year) time frame to obtain real property by adverse possession under certain circumstances. The legislation is designed to assist adverse possessors when a property has an “absentee” owner. Under this new law, the property must be a half-acre or less, be improved by a single-family dwelling, and identified as a separate lot in a recorded conveyance, on a subdivision plan or on an official map/municipal plan. The law does not apply to property that is part of a common interest ownership community (condominium, cooperative) or that is owned by a governmental entity.

    Under the new law, an adverse possessor may acquire title by filing a quiet title action against the record owner. The complaint, containing the legal description and notice of a one-year right to cure, must be served on the record owners, their heirs, successors, and assigns. This right to cure allows the defendant owners to file an action in ejectment against the plaintiff/adverse possessor within one year of the action. If no ejectment action is filed, the court may enter a judgment granting title to the entire property (not just a portion) to the plaintiff/occupant. The judgment, however, does not discharge, terminate, satisfy, or release any existing encumbrances on the title.

    If you have any questions about this post or any other related matters, please email me at jlushis@norris-law.com.

    Posted in: John F. Lushis, Jr., Real Estate & Finance |

  • Aug 19, 2019John Lushis a Presenter at CDFA Summer School

    John F. Lushis, Jr., a Member of law firm Norris McLaughlin, P.A., presented “Setting the Stage: The Basics of TIF” and “TIF Financing Variation” on August 15 and “Understanding TIF Bond Financing” on August 16 at the Council of Development Finance Agencies (CDFA) Summer School at the Westin Book Cadillac Detroit in Detroit, Michigan.

    “Setting the Stage: The Basics of TIF” focused on a general understanding of what TIF is and why communities use it to achieve economic development objectives. “TIF Financing Variation” covered alternatives to the issuance of bonds in a TIF project, including the use of low-interest loans and a public-private partnership component to reduce project construction costs. “Understanding TIF Bond Financing” covered the components of a bond issuance including the creation of Neighborhood Improvement Districts to levy special tax assessments to secure bonds. The presentations were part of a week-long series of courses sponsored by the CDFA Training Institute August 12-16. For more information, please click here.

    Lushis focuses his practice on real estate, commercial transaction law, and environmental law. He provides counsel on an extensive diversity of transactions including leases, acquisitions and divestitures, tax-exempt and conventional financings, brownfields redevelopment, and an array of commercial agreements. Lushis has worked on multi-million-dollar loans and major tax-exempt financings for businesses and non-profits including Cetronia Ambulance Corps, Lafayette College, Lehigh University, Moravian College, and St. Luke’s Hospital.  He also has been involved in tax increment financing projects including Hamilton Crossings Retail Complex and West Hills Business Center. Lushis is solicitor for Lehigh County Industrial Development Authority and has been solicitor to Northampton County New Jobs Corp, Northampton County General Purpose Authority, and Lehigh Valley Economic Investment Corp.

    In late 2015, Lushis became involved in “P3” projects (public-private partnerships) and is a lead architect of a first-of-its-kind P3 project in Pennsylvania. This project, which includes a novel financing structure, will allow Northampton County to replace or rehabilitate numerous bridges at substantial cost and time savings compared to traditional methods. The project has become a model for other P3 projects and has received statewide and national attention. As an outgrowth of the project, Lushis assisted in drafting legislation signed by Governor Wolfe in October 2017 to allow counties having a certain population, such as Northampton County, to construct a new jail using a P3 transaction structure.

    Lushis is also registered to practice in the United States Patent and Trademark Office and his knowledge of intellectual property is a valuable resource for clients who have projects and transactions in the area. He received his B.S.M.E., cum laude, from University of Notre Dame in 1977, and his J.D. from Pennsylvania State University Dickinson School of Law in 1980.

    Posted in: Business Law, Economic Development Law, Environmental, John F. Lushis, Jr., Mergers & Acquisitions, News | Tags: , , ,

  • Aug 01, 20195 Key Changes to the Pennsylvania Contractor and Subcontractor Payment Act

    By: John F. Lushis, Jr.

    Purchasers of real estate that desire to retain a contractor to construct improvements on the property know that timely payment of contractor and subcontractors is of critical importance. Pennsylvania has enacted significant changes to the Pennsylvania Contractor and Subcontractor Payment Act (“CASPA”) that affect all construction contracts entered into on or after October 9, 2018.

    Key Changes to CASPA

    1. The parties to a construction contract may not waive any provision of CASPA “by contract or other agreement.”
    2. CASPA as originally enacted provided that except as otherwise agreed by the parties, payment of a contractor’s invoices is due within 20 days. The amendments provide that if payment has not been made as provided in the construction contract, or if at least 30 calendar days have passed since the end of the billing period for which a payment has not been received by the contractor according to the terms of the construction contract, the contractor can provide written notice to the owner stating that payment has not been made. If at least 30 days pass subsequent to the contractor’s sending such notice and payment still has not been made, the contractor can provide 10 calendar days’ written notice of the contractor’s intent to suspend performance. If the construction contract sets forth a procedure that “exceeds” the foregoing procedure, the procedure set forth in the construction contract is unenforceable.
    3. The amendments include provisions relating to the owner’s authority to withhold payment. If an owner withholds payment for a deficiency item, the amount withheld must be reasonable, and the owner must notify the contractor of the deficiency item by a written explanation of the owner’s good faith reason within 14 calendar days of the date that the invoice is received. A failure to comply with this provision constitutes a waiver of the basis for the owner to withhold payment and necessitates payment to the contractor of the invoice in full.
    4. The amendments cover errors in documentation. As originally enacted, CASPA provided that if an invoice is filled out incorrectly or incompletely, the person who receives the incorrect invoice must give written notice to the person who sent the invoice within 10 working days of receipt of the notice. The amendments provide that after such written notice has been received by the person who sent the incorrect invoice, the person receiving the invoice is to pay the correct amount on the due date.
    5. The amendments also set forth changes relating to retainage. Upon reaching substantial completion of its scope of work, contractor or subcontractor may facilitate the release of retainage on their contracts before final completion by posting a maintenance bond with approved surety for 120% of the amount of retainage being held. The withholding of retainage for longer than 30 days after final acceptance of the work results in an owner’s, contractor’s, and subcontractor’s right to withhold payment.

    If you have any questions about this post or any other related matters, please email me at jlushis@norris-law.com.

    Posted in: John F. Lushis, Jr., Real Estate & Finance |

  • Jul 11, 2019Representations and Warranties: Key Factors in Real Estate Transactions

    By: John F. Lushis, Jr.

    A key aspect of commercial and industrial real estate transactions centers around the representations and warranties made by the seller, which can often be subject to extensive negotiation. Not surprisingly, a seller strives to limit the representations and warranties but factors such as the nature of the property (e.g., improved vs. unimproved), its historical use, and the involvement of a lender will impact the negotiation process.

    Key Factors to Consider

    1. The first factor is their extent. Typical representations and warranties cover the nature of the seller (e.g., limited liability company), the proper authorization of the transaction by the seller’s governing body, and a statement that the transaction will not violate any agreement to which the seller is a party. But buyers often want other representations and warranties, such as compliance with all applicable laws, the condition of the property (e.g., lead paint, asbestos, underground tanks, and the existence of any threatened litigation). Regardless of the extent of the warranties, a seller must be mindful of the duty to disclose material information about the property.
    2. The second concerns qualifiers. For example, a seller may seek to limit representation and warranty to the “best of seller’s knowledge.” But even these qualifiers must be carefully evaluated. For example, if a representation is made “to seller’s knowledge,” an immediate question is, whose knowledge? Everyone in the organization from the president on down, or only certain individuals?
    3. The third factor is the period of time the representations and warranties will survive the closing. The survival period is critical in the event a post-closing claim is made by the buyer for a breach of a representation and warranty.
    4. Lastly, if the purchase price is substantial, the buyer and the seller may wish to consider procuring representation and warranty insurance.

    The real estate attorneys at Norris McLaughlin have substantial experience with commercial real estate transactions and are prepared to assist you. If you have any questions about this post or any other related matters, please email me at jlushis@norris-law.com.

    Posted in: John F. Lushis, Jr., Real Estate & Finance |

  • Jun 20, 2019Who Should Consider a Co-Tenancy Agreement?

    By: John F. Lushis, Jr.

    A real estate transaction that may appear simple on the surface is the purchase of a residential dwelling by an unmarried couple who wish to live together in that dwelling. But purchasing a house together, even with the best of intentions, can sometimes be a recipe for trouble.

    Questions to Consider

    At the outset, questions such as whether the title will be taken in both names must be evaluated. This is significant because if the title is taken in both names and a mortgage lender is involved, the couple will both be required to sign the mortgage and, from the lender’s perspective, will both be liable for the monthly mortgage payments.

    Additionally, it will be necessary to answer questions such as who will pay what share of the house expenses including the mortgage payments, and how will decisions regarding major expenses (such as a new roof or a new heating system) be handled?

    Even more of a concern is what would happen if the couple purchases the house and move in together, but never marry, and eventually decide to part ways. Will the house be sold? Can one significant other buy out the other? How will the purchase price be determined? What if children are involved and they do not wish to attend a different school?

    If these questions are not addressed at the outset, addressing them later will be more difficult and most likely much costlier. Unlike married couples, unmarried couples do not have the advantage of divorce laws to help address these issues and run the very real risk of finding themselves stuck.

    The Solution

    One way for an unmarried couple to address these issues is through the use of a “co-tenancy agreement.” A carefully written co-tenancy agreement will allow answers to the questions described above and other questions the couple may have to be spelled out clearly so that if the unmarried couple decides to live together no longer, a roadmap will be available to them and legal counsel to address the consequences of their separation. This can serve to reduce expensive difficulties and potential court proceedings.

    The real estate attorneys at Norris McLaughlin have handled situations involving unmarried couples and are ready to assist you. We can explain in detail the legal aspects of a co-tenancy, answer your questions, address your concerns, and walk you through the negotiation of a mutually satisfactory co-tenancy agreement.

    If you have any questions about this post or any other related matters, please email me at jlushis@norris-law.com.

    Posted in: John F. Lushis, Jr., Real Estate & Finance |

  • Nov 07, 2017John Lushis Presents at 2017 RE3 Conference

    John F. Lushis, Jr., a Member of Norris McLaughlin, P.A., and Co-Chair of its Economic Development Law Group, presented at the 2017 RE3 Conference from November 1 to November 3 at the Philadelphia Marriott Downtown.  He and Brett W. Cox of TRC Environmental Corporation presented “Bethlehem Works and Commerce Center at 20 Years,” providing insights from both an owner’s and consultant’s perspective that are relevant today; how and why key decisions were made, how they were implemented, and acknowledge the key roles of all stakeholders; and demonstrating the value to the Bethlehem-Allentown region twenty years later.

    Hosted by EnviroBlend, Metal Waste Treatment by Premier Magnesia, LLC, in cooperation with the Association for Redevelopment Initiatives, the RE3 Conference spotlights best practices and lessons learned for the cleanup and repositioning of industrial, manufacturing, and logistics-oriented sites.  In its third year, the RE3 Conference has become an essential gathering of professionals looking to redevelop brownfield properties through real world remediation technology and methods.

    Lushis focuses his practice on transaction, real estate, and environmental law.  He serves as one of the Firm’s corporate environmental counsel, focusing on soil and groundwater issues and other environmental issues for various businesses.  He provides counsel transactions including loan transactions, corporate restructurings, acquisitions and divestitures, leases, industrial development authority financings, and a wide array of commercial agreements.  He has worked on multi-million-dollar loans and major tax-exempt financings for businesses and non-profits, as well as tax increment financing projects that have spurred major industrial and commercial developments.  Lushis serves as solicitor for Northampton County General Purpose Authority, and co-solicitor for Lehigh County Industrial Development Authority, Northampton County New Jobs Corp, and Lehigh’s Economic Advancement Project.  In his work as solicitor for the General Purpose Authority, he is one of the “architects” of the first-of-their-kind P3 projects in the United States with particular focus on innovative financing.

    Lushis has represented some of the Lehigh Valley’s most prominent entities, including American Bank, BB&T, Health Network Labs, Horwith Trucks, Lehigh University, LifePath, Melting Pot Restaurants, Molded Acoustical Products of Easton, the Paxos Restaurant Group, and Sands Casino Resort Bethlehem.  In his career, he has been involved in transactions and financings totaling well into the billions of dollars.

    Lushis earned his J.D. from Pennsylvania State University’s Dickinson School of Law in 1980, and his B.S.M.E., cum laude, from the University of Notre Dame in 1977.  He holds an AV (Preeminent) rating from Martindale-Hubbel.

    Posted in: Economic Development Law, John F. Lushis, Jr., News | Tags: , , , , , , ,

  • Oct 17, 2017Norris McLaughlin, P.A. to Sponsor and John Lushis & Graham Simmons to Participate in 2017 PEDA Fall Conference

    Norris McLaughlin, P.A., is proud to sponsor the 2017 Pennsylvania Economic Development Association (PEDA) Fall Conference to be held at the Renaissance Allentown Hotel from Monday, October 23, through Wednesday, October 25.  John F. Lushis, Jr., and S. Graham Simmons, Members of the firm and Co-Chairs of its Economic Development Practice Group, will participate in the event.  Simmons will introduce and wrap up “From Brownfields to Business: Turning Blight into Opportunity” on Tuesday, 3:00 – 4:00 PM. and Lushis will discuss “Addressing Aging Infrastructure through Public-Private Partnerships” on Wednesday, 9:00 – 10:15 AM.

    Other sessions will cover employers’ perspectives, entrepreneurship culture, strategic collaboration, small business development, equitable economic development, regional growth, downtowns, urban cores, national trends, and economic competitiveness.  Participants are expected to include professionals representing economic and community development at the municipal, county, regional, and state levels, as well as commercial and industrial developers, business incubator operators, project finance professionals, IDA directors, elected officials, and executives representing utilities and transportation, engineering, and construction.  For more information and to register, download the event brochure here or visit the PEDA website at www.peda.org.

    PEDA is the primary statewide association representing local, state, corporate, and non-profit economic development professionals.  It provides educational opportunities to share best practices that enhance the professional dialogue, supports economic development initiatives, promotes economic development policies, and nurtures an effective statewide network to foster the economic growth of the Commonwealth.  Members of PEDA include county and regional economic developers, state government economic development employees, utility and transportation executives, industrial development authority directors, operators of industrial and technology incubators, chamber of commerce executives, municipal directors of community and economic development, engineering and construction executives, economic development finance professionals, commercial and industrial developers, and local, county and state elected officials.

    “The Lehigh Valley has been an epicenter of economic progress and innovation. As an architect of the innovative P3 Bridge Renewal Project in Northampton County and novel tax increment projects for the construction of major infrastructure in Lehigh County, Norris McLaughlin, P.A. is proud to be a partner in this progress,” said Lushis.

    Simmons adds, “the heart of the Neighborhood Improvement Zone in the great City of Allentown is really the perfect location for PEDA’s Fall Conference so that economic development professionals from across the Commonwealth can witness first-hand the renaissance made possible by strong public and private partnerships leveraging what can be transformative economic development incentives.”

    The Norris McLaughlin, P.A. Economic Development Practice Group provides economic development strategic, legal, and advocacy services to our clients, including private companies, 501(c)(3) non-profit companies, developers, and municipal governments and authorities.  In addition, they have significant experience with the establishment of leadership summits focused on projects and initiatives impacting the Lehigh Valley.

    The attorneys in the group possess unique breadth and depth of experience in working with Lehigh and Northampton County administrations, local cities and other municipalities, as well as their economic development departments, to lead financings, public-private partnerships, and strategic planning for transformative projects throughout the Lehigh Valley.  They serve on the committees and boards of local and regional economic development organizations such as the Lehigh Valley Economic Development Corporation and the Greater Easton Development Partnership; are members of Pennsylvania Economic Development Association, Urban Land Institute, Lehigh Valley Economic Development Corporation, and the Greater Lehigh Valley Chamber of Commerce; and provide special counsel legal services to the Easton Redevelopment Authority, Lehigh Valley Industrial Park, Lehigh Valley Economic Development Corporation and Lehigh Valley Land Recycling Initiative.

    Posted in: Economic Development Law, John F. Lushis, Jr., News, S. Graham Simmons, III | Tags: , , , , , ,

  • Aug 01, 2017John Lushis, a Co-Presenter at NACo Annual Conference & Exposition

    John F. Lushis, Jr., a Member of Norris McLaughlin, P.A., was a co-presenter at the National Association of Counties (NACo) Conference & Exposition in Columbus, Ohio, on July 21.  Along with Northampton County Executive, John Brown, and County Director of Public Works, Stan Rugis, he discussed Northampton County’s P3 projects.

    The NACo Annual Conference & Exposition, held July 21-24, brought together elected officials and county staff from across the country to education and networking sessions aimed to improve the residents’ lives and the efficiency of the counties.

    Lushis focuses his practice on transaction, real estate, and environmental law.  He serves as one of the Firm’s corporate environmental counsel, focusing on soil and groundwater issues and other environmental issues for various businesses.  He provides counsel transactions including loan transactions, corporate restructurings, acquisitions and divestitures, leases, industrial development authority financings, and a wide array of commercial agreements.  He has worked on multi-million-dollar loans and major tax-exempt financings for businesses and non-profits, as well as tax increment financing projects that have spurred major industrial and commercial developments.  Lushis serves as solicitor for Northampton County General Purpose Authority, and co-solicitor for Lehigh County Industrial Development Authority, Northampton County New Jobs Corp, and Lehigh’s Economic Advancement Project.  In his work as solicitor for the General Purpose Authority, he is one of the “architects” of the first-of-their-kind P3 projects in the United States with particular focus on innovative financing.

    Lushis has represented some of the Lehigh Valley’s most prominent entities, including American Bank, BB&T, Health Network Labs, Horwith Trucks, Lehigh University, LifePath, Melting Pot Restaurants, Molded Acoustical Products of Easton, the Paxos Restaurant Group, and Sands Casino Resort Bethlehem.  In his career, he has been involved in transactions and financings totaling well into the billions of dollars.

    Lushis earned his J.D. from Pennsylvania State University’s Dickinson School of Law in 1980, and his B.S.M.E., cum laude, from the University of Notre Dame in 1977.  He holds an AV (Preeminent) rating from Martindale-Hubbel.

    Posted in: Economic Development Law, John F. Lushis, Jr., News | Tags: , , , ,

  • Oct 12, 2015What Tools are in Your Environmental Toolbox?

    John F. Lushis, Jr., of Norris McLaughlin, P.A., with Ronald Madison, Richard Roseberry, and Philip Gauffreau of Maser Consulting will present a workshop entitled What Tools are in Your Environmental Toolbox? ­to consultants, developers, contractors, real estate professionals and lenders. The workshop will be on Wednesday, November 4, at our office in Allentown. The schedule will be as follows:

    Registration 8:30–9:00 a.m.
    Program 9:00–10:30 a.m.
    Questions & Answers 10:30 – 11:00 a.m.

    For registration information, please click here.

    John, a member of the firm, focuses his practice on environmental, real estate, and transaction law. He provides counsel on an extensive diversity of transactions, including loan transactions, corporate restructurings, acquisitions and divestitures, leases, industrial development authority financings, and a wide array of commercial agreements. He has worked on multi-million-dollar loans and major tax-exempt financings for businesses and non-profits, as well as tax increment financing projects for major developers. John is one of the firm’s corporate environmental counsel, focusing on soil and groundwater issues and other environmental issues for various businesses.

    Posted in: Environmental, John F. Lushis, Jr., News |

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