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Legal Proceedings
3 Months Ended
Mar. 31, 2013
Legal Proceedings [Abstract]  
Legal Proceedings

6. Legal Proceedings

 

As previously disclosed in Power REIT's public filings with the SEC, Power REIT and its wholly-owned subsidiary, P&WV, are in litigation with NSC and NSC's sub-lessee, Wheeling & Lake Erie Railroad (together with NSC, the "Litigants").  The case is pending in Federal Court in Pittsburgh, PA ("Court").  The Litigants initiated the litigation against Power REIT and P&WV in December 2011, seeking, among other things, a declaratory judgment that NSC was not in default under the 99-year lease that NSC had entered into with P&WV in 1962. 

 

P&WV, as lessor, has asserted counterclaims seeking determinations that NSC is in default under the lease for, among other things, failing to reimburse certain legal fees incurred by P&WV and for failing to permit P&WV to inspect NSC's books and records as called for under the terms of the lease. P&WV also seeks determinations from the Court declaring (a) that NSC's obligation to repay the indebtedness owed under the lease is not indefinite in duration; and (b) that the indebtedness owed to P&WV is due on demand with interest.  If P&WV is successful in establishing that the lease is in default, it can terminate that lease and demand payment for Indebtedness that is owed to it from NSC.

       

According to records provided to P&WV by NSC, the indebtedness that is owed to P&WV is approximately $16,600,000 and $16,200,000 as of December 31, 2012 and December 31, 2011 respectively.  P&WV believes these amounts may be understated.  The indebtedness owed to P&WV is the cumulative result of additional rent and other sums that NSC owes to P&WV but has elected under its interpretation of the lease to pay via indebtedness rather than cash. These sums include amounts received by NSC from its disposition of P&WV's assets.  The indebtedness has not been reported in P&WV's consolidated balance sheets as prepared under GAAP due to the dispute on when these amounts are due.  Similarly, the amounts of additional rent paid by NSC that have been handled as indebtedness have not been included in P&WV's income statement prepared under GAAP; however, these additional rent amounts have historically been recorded as taxable income on P&WV's tax returns.

 

In addition, as part of the litigation proceedings, Power REIT filed a motion requesting that it be dismissed from the litigation on the ground that it is not in contractual privity with either of the Litigants.  The Litigants opposed Power REIT's motion to dismiss, alleging that Power REIT is a successor in interest to P&WV in regard to the lease.  Pursuant to applicable law, on a motion to dismiss, a court must accept as true all of the challenged allegations.  On this ground, the Court overseeing the litigation denied Power REIT's motion to dismiss. Power REIT believes that there is no merit to the successor-in-interest allegation and intends to vigorously defend its position; however there can be no assurance that Power REIT will prevail.

 

As of the date of this filing, the fact discovery phase of the litigation has been mostly completed. The parties are currently in the expert witness discovery phase of the litigation.  During the first quarter of 2013 and first quarter of 2012, P&WV incurred approximately $240,000 and $83,000 of legal expenses, respectively, in connection with the litigation.  P&WV believes that the costs associated with the litigation are reimbursable by NSC under the lease as additional rent, but NSC has refused to pay such amounts.  There can be no assurance that P&WV will prevail in collecting its litigation costs from NSC as part of the litigation.  Accordingly, litigation expenses are accrued and expensed as incurred.  As of the first quarter of 2013, NSC has continued to make all quarterly base rental payments due during the pendency of the litigation. There can be no assurance that NSC will continue to make its base rent payments.