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New York Law Journal Book Review: NYSBA Real Estate Titles: The Practice of Real Estate Law in New York (4th ed.)

New York State Bar Association, 4th edition (July 4, 2020)

I purchased the 2d edition of the New York State Bar Association’s Real Estate Titles over two decades ago. No dust ever accumulated on it, since it was in constant use, not only by me, but also by my colleagues who repeatedly borrowed it. Recently, I acquired the new 4th edition of Real Estate Titles, updated and now named “Real Estate Titles—The Practice of Real Estate Law in New York” (called Real Estate Titles 4th below). Real Estate Titles 4th was edited by contributing authors Adam Leitman Bailey of Adam Leitman Bailey, P.C. and Michael J. Berey of First American Title Insurance Company. It is available at https://realestatetitlesbook.com/ and also in an electronic format from the New York State Bar Association. Here are my impressions of this book.

U.S. and International Preference for New York Law

The first question is, who should read this book? Why should a lawyer, who practices in a state other than New York, care about New York law? The answer is that, in large deals, more contracts tend to apply New York law than the law of any other state. For example, an analysis of the provisions for choice of law and forum, in agreements included in 2002 SEC filings by public companies, found that approximately 50% applied New York law. Theodore Eisenberg and Geoffrey P. Miller, The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Publicly Held Companies’ Contracts, 30 Cardozo L. Rev. 1475 (2009). New York law was chosen by public companies about three times more often than the law of Delaware (the second most popular state) was chosen by public companies (with respect to contractual provisions for choice of law and forum). For the reasons why New York law is often chosen in non-New York transactions, see, e.g., Boaz Morag, Katie Gonzalez and Elizabeth Brody, “New York as the Preferred Law and Forum for Commercial Disputes” (Practical Law Feb. 6, 2020), and Andre Jaglom and Michael Galligan, New York Law as the Gold Standard Choice—FOR GLOBAL BUSINESS CONTRACTS (Feb. 1, 2019).

Also, in my experience, commercial loan agreements disproportionately designate New York law as the governing law, for reasons such as New York’s lender-friendly usury exemption for loans of $2,500,000 or more. N.Y. Gen. Oblig. Law §5-501(6)(b). New York law also is more likely (than the law of other American states) to be designated as the applicable law in international contracts, based on an analysis of contracts involved in disputes before the International Court of Arbitration of the International Chamber of Commerce, which is headquartered in Paris. Gilles Cuniberti, The International Market for Contracts: The Most Attractive Contract Laws, 34 Nw. J. Int’l. L. & Bus. 455, 516 (2014). Similarly, in Central America, apparently lawyers tend to prefer to draft contracts that apply the law of New York rather than the law of other U.S. states. Ignacio Andrade Aycinena and Claudia Pontaza, The New York Law as the Choice of Law in Central America Contracts.

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