New York Real Estate Lawyer Blog

There are many attorneys in New York, but when it comes to buying your home, a commercial business, or other transaction involving New York State real estate, you really should hire an attorney that handles real estate transactions. Real estate transactions can get complex. Hiring a real estate attorney has the practical advantage of simplifying the process.

How do you identify a real estate lawyer you want to work with?

One way to find a real estate lawyer is through referrals from family or friends. Ask your family or friends whether the real estate attorney was attentive to their questions, available by telephone, took their calls personally. Personal attention and attentiveness deserves a premium when you are purchasing what will likely be your most expensive asset.

What about finding an attorney on the internet. As you can see, at Klose & Associates, we believe that the internet and e-mail are essential tools in a real estate attorney's arsenal. We handle most of our transactions by constant electronic contact with real estate brokers, clients, title agents, banks and mortgage brokers. You get prompt service, prompt response to your questions, and all parties are privy to the major steps to a real estate transaction. Make sure that the real estate lawyer you hire will meet your particular needs.

Beware, not all real estate transactional attorneys also know how to deal with real estate litigation. Litigation real estate lawyers handle lawsuits involving adverse possession, zoning and planning (Article 78), and other types of litigated issues. The morass of real estate law means that a litigation attorney needs to know how and where to look for cases that are similar to the ones involving yours.

Bottom Line-- understand that different real estate attorneys bring different skills and knowledge to a transaction or litigated matter. You should call several to be sure that they have the experience you need for your matter. Ask questions regarding your concerns, including billing rates, whether there is a flat fee, hourly fee, or contingency basis. While estimated costs in litigation are hard, they may not be in a transactional situation.

As simple and obvious as it sounds, don’t hire a lawyer for your real estate case that does not practice real estate

So, you spend a lot of time blogging, or you have swell content on your web-site which someone has blatantly copied (hijacked). What do you do to protect your copyright or trademark?

The Problem

The drafters of the Copyright Act (1976)) never contemplated the ease and speed of copyright infringement made possible by technological advances which include the Internet which has billions of pages of content.

A copyright is a set of exclusive rights granted to an author – or owner – of an original work fixed in tangible form for a limited and specified period of time. Original works may include literary, dramatic, musical, artistic, and certain other intellectual works. Ownership is obtained when an author (the owner) creates an original work and fixes it in a tangible form. It is a "violation" or "infringement" to copy, distribute, or adapt a work during the term of protection.

When it comes to the Internet infringement occurs in various, but often not blatant ways. The infringement occurs by faceless and nameless third parties, but occurs in the medium known as the Internet. So, owners of the copyright are economically encouraged to go after the internet providers because they are most "visible" and identifiable. This is type of infringement action seeks to enforce copyright liability through "contributory" or "vicarious" infringement.

Contributory infringement occurs when a person acts knowingly to cause or induce infringing conduct. Vicarious infringement, on the other hand, occurs when a person has both the ability to control an infringe’s actions and benefits financially from the infringement.

Defenses to Infringement

In all cases, the potential infringer has certain "defenses" to liability for infringement. One such defense is known as "fair use," another is the First Amendment's protection of free speech. "Fair use" allows the use of copyrighted materials for purposes of criticism, comment, teaching, scholarship, or research. The idea is to balance intellectual property rights against the free exchange of information and opinion-- which is a large reason that the Internet exists.

Courts determine whether copyright infringement occurred (or whether it is a "fair use") on a case-by-case basis factoring: 1) purpose and use of copy, 2) nature of copyrighted work, 3) amount copied, and 4) copy’s effect on the copyrighted work’s potential market.

Applying this "fair use" to the Internet world is a difficult task for Congress and American courts. Internet content providers argue their use of copyright works is fair use; Copyright holders and content creators argue that their protections are being infringed.

Under the First Amendment, the idea is that anonymous encouraging a certain ‘freedom of expression," which we as Americans hold dear The challenge to free speech is that compulsory disclosure of the identity of the speaker may discourage free speech opportunities where people are more likely to voice their opinion and provide information. One side promotes Internet anonymity because it promotes the First Amendment rationale that democracy is most effective when there is an open exchange of ideas.

The Balancing Act

Congress has tried to balance the challenges and the burgeoning infringement cases by enacting The Digital Millennium Copyright Act (DMCA) (1998) to provide safe harbor provisions for Internet Service Providers (ISPs) and web hosts, while giving a voice to the copyright owners.

The first step to pursuing a copyright claim against an ISP or a web-hosting company is to request a DMCA take down notice. The copyright owner may send "notice" to the ISP demanding the removal or blockage the copyrighted material. The ISP must reply promptly and comply to remain exempt from liability for contributory or vicarious infringement.

The take down notice under the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”) must contain several legal buzzwords and address various legal requirements, but is a great first step toward having the copyright honored and protected by the Internet chiefs who control the content.

The Bottom Line-- the cost for investigation and prosecution of a take down notice against the web-site provider is not prohibitive. Contact your friendly Internet and intellectual property lawyer to protect your interest.

As our society and the pressures of urbanized living change the face of the Hudson Valley, many land owners are contemplating Conservation Easements to protect, preserve, or otherwise maintain local farmland.

Conservation easements are land preservation agreements (easements) where the landowner agrees to limit the use of her land for purposes of "conservation." Voluntarily entered and legally binding, these easements often restrict commercial, real estate, and industrial development. Indeed, many communities across New York State have actually passed zoning designed to encourage the creation of conservation easements to ‘run with the land.’ These often complex agreements and statutes mean that the use "limitations" that an owner agrees to will be binding on future owners of the land.

In New York, there are several requirements for a land preservation agreement to qualify as a "conservation easement." First, the agreement must be perpetual and permanent. Second, the land subject to the easement must be physically located in the state of New York. Third, the easement must be held by a conservation agency which may include any federal, state, or local government agency or non-profit land trust. Fourth, the easement must protect open space, biodiversity, or natural resources by restricting commercial, real estate, and/or industrial development. And lastly, the agreement must be filed with the State Department of Environmental Conservation. Since most "conservation agencies" are non-profit, the sale or gift of such conservation easements often is a charitable donation and potentially limits taxes.

Conservation obviously touches a nerve and fosters a debate among residents, politicians, land owners, farmers and developers as to the efficacy of such agreements. If you are contemplating such an easement, you should definitely hire a real estate attorney capable of explaning the issues to you.

I just noticed this recent post in the NYTimes about more modest weekend homes and retreats in the Hudson Valley.

When purchasing a second home we recommend hiring a local real estate attorney to give you the "lay of the land," to direct you as to issues that arise in "upstate" real estate transactions, and to help you avoid the pitfalls. In the past three years, as second home prices have fallen in the region, distressed real estate has become a haven for problems caused by neglect, economic desperation and ignorance. Leaking oil tanks, failed septics, contaminated water, even leaky roofs have caused problems.