New York Real Estate Lawyer Blog

We recently discussed hidden dangers lurking under the ground with USTs (Underground Storage Tanks-Fuel). A similar problem exists with aging septic tanks and fields in New York State. Who's responsible for finding the problems? What are the problems? How are the problems with septics fixed?

These are all common questions, especially when you are buying a home without municipal sewer and water.

Problems that can arise with septic tanks include tanks which have not been cleaned, cannot be located, or are buried too far underground to inspect. Failures include inability to absorb and disperse water (with dye); failure to remove the bacteria, or backups. Sometimes the septic field is not even located on the property you are buying.

No matter what the problem, you, as a home buyer of an older model home, must investigate the health and safety of the septic because any problems you find will become yours if you do not address them with the current owners/sellers. New York State is a "caveat emptor" or "buyer beware" state, meaning that you will not likely win a case against the seller for a "failed septic system," unless some level of fraud exists.

In the case of new or custom-built homes, buyers are usually successful in seeking property damages against the owner based on the reasoning that a new home buyer should be able to reasonably expect the house to be an adequate living environment. The courts generally find express warranties as well as implied warranties of habitability in a new home real estate purchase. In fact, New York's General Obligation law makes builders responsible as a matter of statutory law.

Buying a used home, however, commonly invokes the rule of caveat emptor - which in laymen’s language means ‘buyer beware.’ Without an express warranty concerning the septic tank, a buyer will find it more difficult to seek property damages from an owner, but there have been cases where the courts have determined an implied warranty.

Bottom line-- ask the questions, inspect the system, and check building department files to see whether any work has ever been performed and whether the Board of Health has given its seal of approval for the design and installation of the system.

As a corollary, you should also test the water, especially if it is a private well because the evidence of a failed septic sometimes appears as bacteria in the water test.

You owe some money on a debt, the creditor gets a judgment against you, and suddenly, your checking account is frozen by a restraining notice. That scenario is all too common, especially when we all live in a large metropolitan neighborhood, change addresses often, and sometimes don't get copies of the lawsuit naming you as a party to the action.

New York State has recently amended its laws relating to when a creditor seeks to restrain a debtor’s bank account. Specifically, New York state law exempts certain types of income from debt collection. These exemptions include veterans’ benefits, Social Security, Social Security disability, pensions, public assistance, workers compensation, unemployment insurance, child support, as well as spousal support and maintenance. Although the New York State exemptions are intended to ensure "at-risk" New Yorkers have the means to buy food, pay rent, and have basic necessities, procedural loopholes have increasingly led creditors to freezing bank accounts containing legally exempt income.

As a result, New York has recently enacted the Exempt Income Protection Act (EIPA). The EIPA limits creditors’ ability to restrain exempt funds stipulating that banks cannot restrain the first $1,716 in a debtor’s account if he or she does not receive government benefits or assistance.

In cases where a debtor is receiving governing assistance, banks cannot restrain the first $2,500 of an account during a forty five day period prior to a restraining notice. If a creditor objects to a claimed exemption, it is the creditor that has the burden to prove that a debtor’s account funds are not exempt or seek to enforce a restraining notice elsewhere. Intended to close procedural loopholes, the new statute is a further effort to protect vulnerable residents from destitution.

Bottom line-- those with only small amounts of money in the bank, receiving governmental subsidies and pensions have protection from Creditors seeking to freeze such assets. You should immediately review the restraining notice and let your bank know if the benefits are being frozen.