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Property Law Keyed to Dukeminier
The Symphony Space, Inc. v. Pergola Properties, Inc.
Citation:
646 N.Y.S.2d 641 (1996)Facts
In 1978, Broadwest Realty Corporation owned a two-story building on Broadway in Manhattan containing a theater and commercial space. Broadwest had been operating its properties at a loss and was unable to secure a permanent tenant for the theater. Symphony Space, a not-for-profit arts organization, had previously rented the theater for one-night engagements. The parties entered into a transaction whereby Broadwest sold the entire building to Symphony for $10,010, while leasing back the commercial space for $1 per year until 2003. Broadwest remained liable for the existing $243,000 mortgage and certain maintenance obligations. As part of the transaction, Symphony granted Broadwest an option to repurchase the entire building for a nominal sum.
The purpose of this arrangement was to enable Symphony, as a not-for-profit corporation, to seek a property tax exemption for the entire building, reducing Broadwest’s real estate taxes while allowing it to retain rental income from the commercial space. The option agreement permitted Broadwest to exercise its option during several “Exercise Periods,” including “at any time after July 1, 1979” with closing dates in 1987, 1993, 1998, or 2003, as well as following mortgage default or lease termination. The option was expressly made unconditional and a covenant running with the land.
In 1981, Broadwest sold its interests to defendants’ nominee for $4.8 million. In 1985, defendants attempted to exercise the option following Symphony’s alleged default on the mortgage. Symphony disputed the default and initiated this declaratory judgment action, arguing that the option violated the Rule against Perpetuities.
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