New York Real Estate Lawyer Blog

Last month, the New York Court of Appeals ruled that the state of New York may legally seize private land for private developers use. In the 6-1 decision, the court allowed the seizure of a 22-acre plot located in downtown Brooklyn – effectively allowing the Atlantic Yards Project to proceed – reasoning it would allow for improvements on the “blighted conditions” of the property. The recent ruling falls in line with the 2005 decision by the Supreme Court in Kelo v. City of New London that similarly allowed a corporation to seize private homes and businesses to build a research campus.

The New York court’s ruling has raised arguments from opponents that ownership rights amount to being worthless if a government deems private land for the ‘public good.’ The Atlantic Yards Project, headed by Forest City Ratner Cos., seeks to develop office towers, apartments, and most notably an $900 million arena for the NBA’s New Jersey Nets. The only dissenter on the court’s bench stated, “It might be possible to debate whether a sport stadium open to the public is a ‘public use’ in the traditional sense, but the renting of commercial and residential space by a private developer clearly is not.” The New York Court of Appeals, however, ultimately ruled that the definition of ‘blight’ is a matter for the legislature, not the courts, to change.

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Posted In: General Interest , Legislation-Regulation , Real Estate Litigation

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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.

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Posted In: General Interest , Legislation-Regulation

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As the fiscal crisis for government deepens, local leaders are increasingly pressed to re-tool. For years, consolidation of governmental services has been a complex labyrinth of regulation understood by few. New York State Attorney General, Andrew M. Cuomo believes that one way to improve the services and reduce the tax burden, is to remove and consolidate various layers of government-- to reduce the tax bills for everyday tax payers who often pay county and town taxes, village taxes, school taxes and taxes for special districts, including water, sewer, and utilities.

Given the current fiscal crisis New York State faces, with declining revenue (taxes) and increasing needs (costs of services), how is the local municipality going to effectively provide the services without increasing taxes or reorganizing governmental entities to efficiently provide the same services.

Just as private businesses re-organize in this global economy, the municipal market place might need re-structuring if we are to retain our middle class, our businesses, and our home rule. Think of the duplicity (redundancy and otherwise) in services provided by an estimated 10,521 overlapping governmental units, sub-divisions, etc. Would private industry permit the same wasteful bureaucracies that exist in local communities.

Under the current law, the consolidation and re-organization solution that can be executed by private industry is hampered by inconsistent, often nonsensical legal barriers, and complexities that make operational reform virtually impossible.

The New York State Attorney General proposed legislation that streamlines existing processes, eliminates inane inconsistencies, and strikes from the law offensive anachronisms such as requiring property ownership in order to vote in a special town election on a proposition to consolidate water districts.

The antiquated system (understood by almost no one) permits New York State real property owners the "privilege" of the highest local tax burden in the country, dwarfing other states, and far exceeding the national average. The theory, eliminate governments by consolidating services, saving millions of dollars.

The newly proposed legislation empowers governments across New York State to study, and then streamline, the complex rules and regulations surrounding the reorganization process.

The impact could be significant, but will local governments and their tax payers have the stamina to address the problem? Read more here.

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Posted In: General Interest , Legislation-Regulation

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How much litigation is spawned by incomplete or suspicious powers of attorney issued to people in confidential or, at least, close personal relationships to the person giving the power to the agent. The opportunities for undue influence are unbelievable, and have lead to sweeping changes in the New York State laws.

By signature on January 27, 2009, New York's Governor Paterson signed into law revisions to sections of the NYS General Obligations Law which governs short form of powers of attorney. Although it is unclear whether the enactment date of March 1, 2009 will be extended, the comprehensive revisions will result in a completely new form, and, in some cases, along with a separate formal rider required when the the Agent makes significant gifts using the Power of Attorney.

One change will require the agent to have his signature "acknowledged" (with the formality of a deed) on the power of attorney giving the agent the right to do the transaction. The power will not be effective unless the acknowledged (and notarized) signature of both the Agent and the person giving the power appears on the form. For further safeguarding, statutorily defined "major gifts" will have to be separately executed as a rider (SMGR rider), with two disinterested witnesses attesting to the signature. New York title companies may refuse to write title if the form is not followed particularly.

The bills (A4392 and S1728) were referred to the Judiciary Committees of the Assembly, and are expected to move quickly through the legislature. The delay has been requested to give additional time for the legal community to become fully educated about the required changes.

Perhaps now we can avoid the familial conflicts that often arise as our older generation needs the assistance of sometimes unscrupulous caregivers.

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Your home is your sanctuary, your largest investment, and possibly your largest headache if you are not careful about who you hire. So, it pays to be careful when hiring home improvement contractors, whether for a small construction project or a huge renovation, you need to know that your contractor is reputable, reliable and not a cheat. Here are some helpful hints in selecting a home improvement contractor in New York.

According to a recent article in the Poughkeepsie Journal, the New York State Attorney General's office has mediated more than 1,550 complaints against home improvement contractors since January 2007, and recovered more than $800,000 in restitution, settlements, or other discounts for consumers. So, how do you avoid becoming the next victim of home improvement contractor problems?

With the Internet, you have valuable resources at your fingertips allowing you to research your selection of a reputable contractor, with know your contractor links to NY state and local county agencies offering consumer assistance and information as to status of a contractor’s license (if required), and any complaints.

The AG's web-site lists about 200 complaints, judgments, and information against home improvement contractors who are reportedly doing shoddy or incomplete work, or who take people's down payments without finishing the job. That is a violation of New York State Lien Law, and can subject the contractor to significant penalties.

The names and identities of the contractors posted on this infamous list is too great to list here, but you should spend the time researching your contractor in Ulster, Dutchess and Columbia County. In New York State, home improvement contractors must be licensed to work on your home in New York City, Suffolk, Nassau, Westchester, Putnam, and Rockland counties.

The bottom line-- be willing to investigate the person who works on your home. It's customary and expected.

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New York State has recently enacted a new section (27-2405) of the Environmental Control Law which shall now require Landlords and Owners to Notify Tenants of "Indoor Air Contamination." Effective December 2008, property owners and landlords will be required to to disclose the results of environmental testing to tenants (both current and prospective). What are the potential ramifications of such a new law?

First, although the New York Environmental Law focuses on "indoor air contamination" and vapor intrusion, the law broadly defines the disclosure to include all "test results."

"TEST RESULTS" SHALL INCLUDE THE RESULTS OF ANY TESTS CONDUCTED ON INDOOR AIR, SUBSLAB AIR, AMBIENT AIR, SUBSLAB GROUNDWATER SAMPLES, AND SUBSLAB SOIL SAMPLES"

Therefore, such tests could mean that any tests of indoor air, outdoor air, groundwater and soils beneath homes and buildings must be disclosed to Tenants if the test results exceed federal or state air guidelines.

If the New York State property is the subject of engineering control by a municipality or the government and is subject to monitoring under a remediation program, then such tenants must be provided written notice of any testing in bold on the first page of any lease agreement.

The penalty provided by the New York statute requires owners of such properties to provide the fact sheet and notice of public meetings (if the test results will be discussed), or face monetary fines.

As with any new law, there are various unanswered quandaries:

1-- Does a purchaser of a building have to disclose the results of its environmental investigation, including any Phase I or Phase II inspections?

2-- Does the law apply to previous testing done before a new owner gains possession?

3- Assuming something is found, does the law require a building be retested?

4-- If the testing shows no problems, must the testing be disclosed?

5-- Is the owner responsible for unknown substances or areas that are not tested at first but later found to exceed some standard?

More to follow as these questions, and others get answered by the courts or attorneys.

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Upstate towns are jumping on the conservation band wagon. The most recent is the Town Board of the Town of North East in Dutchess County.

New York State has authorized the Town Board of the Town of Northeast in Dutchess County to establish a Community Preservation Fund by referendum. The goal of the fund is to provide a source of revenue for the Fund, and adds Article 31-A-3 ("Tax on Real Estate Transfers in the Town of Northeast") to the Tax Law.

Provided the Town approves a referendum to adopt a Local Law, transferees may be subject to a new transfer tax of up to two percent (2%) of consideration, payable by the grantee, on the conveyance of real property in the Town. Other Towns, including the Town of Red Hook has asdded, "[a]n exemption from the tax which is equal to the median sales price of residential real property within the applicable county, as determined by the Office of Real Property Services pursuant to Section 425 of the Real Property Tax Law…"

If you are transferring in the Town of North East, ask your Dutchess County real estate professional whether a transfer tax return will be required for the Town.

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When commission disputes arise, how do you handle them in New York?

Real Estate brokers, realtors, and other real estate professionals who depend upon a commission to be paid will now have a clearer path to address their commission disputes. Under the recently amended NY Real Property Law ("RPL"), Section 294-b, ("Recording brokers affidavit of entitlement to commission for completed brokerage services"), a duly licensed real estate broker may undertake a special procedure to protect their right to an earned real estate commission. (Effective January 1, 2009).

Under the "Commission Escrow Act," a licensed real estate professional may claim entitlement to a brokerage commission for sales and leaseholds by filing an affidavit stating the right to such commission with the recording officer of the county in which the real property is located.

While the filing of the affidavit does not invalidate the transfer or lease of real property, and does not create a lien, it requires the Seller to establish an escrow of monies to "protect" the brokerage commission.

Under the amendment, the so called "Notice of Entitlement" to the commission has been expanded to include claims for transfers of cooperative units; and will be now be recorded upon the "lien docket."

If the property is a one-to-four family dwelling, condominium unit or cooperative apartment, used as a residence and there is a brokerage dispute where the Notice of Entitlement has been filed; the seller shall establish an escrow fund, as follows,

"the lesser of the net proceeds of the sale or the amount of the unpaid portion of the compensation agreed to in such written contract [the brokerage agreement] shall be deposited by the seller… with the recording officer in whose office the affidavit was recorded…until the rights of the seller and broker to such monies has been determined by order of a court of competent jurisdiction…",

Real estate professionals should understand that there are very specific procedures that must be provided, including (i) the brokerage contract includes a notice, as required by the law, (ii) the Notice of Entitlement and affidavit has been recorded, and (iii) the broker serves a copy of the affidavit on the seller prior to closing.

Because the law is still new, it is unclear what will occur if the seller fails to deposit monies into the escrow account since the law does not "create a lien or encumbrance against any real property" and does not invalidate "any transfer of real property".

The term escrow generally means a pool of money held by a third party until the matter can be adjudged by some court or other tribunal. Here, the idea is that buyers and sellers of real estate can deposit the money into a fund and fight over it knowing that there is a pool of money at the end of the dispute. The measure does not pre-judge who is guilty and who is innocent, but provides the outline of a process for keeping the funds available in New York State.

The bottom line-- how often does your attorney tell you,"the cost of fighting is going to be more than the cost of recovery, just settle or give up?" Now, the money will be tied up, offering more of an incentive to capture that money. Call your new york state real estate litigation lawyer if you are uncertain.

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Sellers of homes in Hudson, Germantown, Chatham and all of the other towns in Columbia County, New York, can expect to pay a transfer tax on the transaction.

Beginning December 1, 2007, title agents will collect the Columbia County Real Estate Transfer Tax of $2.00 for each $1,000.00 of the consideration (money) paid for all conveyances of real property located in Columbia County, New York. That means more transfer forms, and more headaches for “grantors,” who are also known as sellers. [Chapter 556 of the Laws of 2007, Columbia County].

The Columbia County Tax law exempts the first $150,000 of sales price (consideration) in connection with the sale of a one family residence, and is collected in addition to the New York State Real Estate Transfer Tax. Not to over-stress the orderly real estate closing, the County uses a tax return which must accompany the payment of the Columbia County Transfer Tax which is essentially a photocopy or carbon copy of the TP-584 (New York State Transfer Tax Form).

This Tax is codified in new Article 31-A-2 (Sections 1439-a through 1439-o) of the New York State Tax Law, which allows Columbia County to pass such law imposing the transfer tax. The Act authorizing the Columbia County Transfer Tax shall expire and be deemed repealed on December 31, 2009.

The bottom line-- Sellers or real estate in Columbia County-- your taxes just went up.

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Posted In: Legislation-Regulation , Real Estate Hints and Help

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Contrary to surrounding counties which require well testing, the Dutchess County executive vetoed recent legislation that would have required the seller of real estate in Dutchess County with a private well to test it before the closing. Under the vetoed law, the test results would have been given to the seller, the buyer and the Health Department. According to published reports, the county executive expressed reservations about requiring individuals to test their particular wells because there are allegedly ongoing ground water tests across the county, and because he has his own plan by which individual homeowners could apply to have their water tested.

The sub-text-- competent real estate attorneys, real estate brokers, and inspectors recommend private well testing to buyers, and wells are commonly tested as part of a real estate transactions in Dutchess County.

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Gov. David A. Paterson recently created new legislation which is designed to protect both buyers and banks. The legislation is targeted at sub-prime loans which are defined as 1.75 percentage points above the prevailing market interest rates.

The legislation opens the possibility for buyers to avoid foreclosure actions if they can demonstrate that the loans should not have been given to them. Fannie Mae and Freddie Mac have stated that they will decline to purchase these sub-prime loans from New York given the increased exposure and cost as a result of this new legislation. Given the risks of this new law it is also possible that community banks and others that offer these sub-prime mortgages will decline to do so in the future. In addition to the risks involved with foreclosures, these banks may decline to offer sub-prime mortgages because Fannie Mae and Freddie Mac’s new policy will make it difficult for these lenders to re-sell these loans.

Federal Housing Administration (“FHA”) loans, which are insured and repaid by the government, could be the only remaining options for a buyer that cannot qualify for a loan that is not sub-prime. FHA loans are typically fixed rate loans but can become expensive because borrowers must pay FHA insurance premiums, which can add up to half a percentage point to the interest rate.

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After years of litigation in the New York insurance industry, beginning January 2009, New York will abandon its often harsh rule permitting personal injury or wrongful death insurers to disclaim coverage on the ground that they did not receive timely “notice” of the claim without proof that there was some sort of harm or “prejudice” suffered by the insurer caused by the delay. [New York Insurance legislation, A11541/S8610]. This is good news for insurance customers throughout New York, who will now have some time to report claims against their insurance policies.

At Klose & Associates, we counsel our clients to promptly report any potential claims to the insurance company, thereby preserving any rights they may have under the insurance policy. Under the old rule– insurers could disclaim coverage based on a late filing of a claim. The courts did not care whether the insurance company suffered “prejudice” from the late notice of the claim, and looked only at whether there was a delay in reporting the accident. This sometimes meant that owners who legitimately did not know about a claim or potential claim were denied insurance coverage simply because the injured party failed to report the incident to the owner.

With the institution of this legislation, even the injured parties would be allowed to sue the insurer to determine the extent of responsible property or car owner’s insurance coverage, and to consider whether suits are worth pursuing. The law requires the insurance company to demonstrate that they were "materially prejudiced" by the delay in reporting the claim if the report was with the first two years after the accident. If the owner fails to report the claim within two years after the accident then the person owning the insurance policy will need to prove that the insurer was not prejudiced by the delay. Regardless, the argument will now be whether the insurance company was actually prejudiced by the delay in reporting the claim.

The legislation applies to personal injury or wrongful death coverage and not other kinds of insurance, such as property or health policies, and was made possible by recent rulings by New York’s highest court relaxing the "no prejudice".

This does NOT mean that you should delay or post-pone reporting any accidents to your insurance company. For the owner that buries her head in the sand, hoping that no claim will be made, only buys potential litigation with the insurance company over the late notice. The bottom line, always report any accidents, and some near accidents, as soon as you know that someone was injured. If you really don’t know about the accident, you may still have the right to insurance even if you report the claim late.

If you have any questions or concerns about an accident that occurred on your property or with your motor vehicle, call your attorney at Klose & Associates. We routinely investigate insurance claims and determine whether you have the right to insurance coverage. At the same time, if your insurance company refuses to accept responsibility, you should immediately seek our insurance lawyer or litigation counsel.

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Governor signed Chapter 269 of the Session Laws of 2008, which significantly amends the Real Property Actions and Proceedings Law in New York State. What does that mean for the average homeowner and neighbor embroiled in a dispute over property lines or boundariesr? Only time will tell, but it appears that it may become more difficult to prove that you own a portion of your neighbor's property if you do not have a "good faith" claim of right to such property.

In the aftermath of two fairly controversial rulings by the Court of Appeals (New York’s highest court) and a mid-level appellate court, the Legislature decided that homeowners (and their real estate litigators) needed a better definition of what it means to “adversely possess” a piece of your neighbor’s property. The new law significantly alters the requirements that must be met before courts will find that title to real property has changed under the doctrine of adverse possession.

Under the new law (effective July 2008), which actually changes various parts of other laws, the Legislature seems to have expressed the view that the existence of minor, non-structural encroachments such as fences, hedges, shrubbery, plantings, sheds and non-structural walls are deemed, as a matter of law, to be permissive and non-adverse. In every day terms, the existence of fences, planters, hedges, shrubbs, and similar objects often placed on or close to your property line will not change who actually owns that slice of property, and will not give rise to a claim for adverse possession. Just because you put your fence on a piece of your neighbor’s property, does not mean you own the property-- there are various other facts and conduct required.

The new legislation specifically provides that the acts of lawn mowing or similar maintenance across boundary lines by your neighbor are deemed “permissive and non-adverse”– that is, neighborly. Such language should be a breath of fresh air for some people who are not quite sure whether they are mowing their own property or helping their neighbors. The Legislature is erring on the side of neighborly accommodation.

By enacting the law, the Legislature tries to insert some "certainty" by defining for the residents of New York that an “adverse possessor” of real property is a person or entity that 'occupies real property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause of action for ejectment.'

If that “adverse possessor” holds its status for ten (10) years, he can apply to the court for title to that portion of land provided that the “occupancy” was “adverse, under claim of right, open and notorious, continuous, exclusive, and actual. “Claim of right” is no defined by the statute to mean that the person claiming possession and title had “a reasonable basis for the belief that the property belongs to [that property owner].”

The most significant change for homeowners and the courts is the wholly new section of law, RPAPL, Section 543, which specifically states that “the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls . . . 'shall be deemed to be permissive and non-adverse.” This means that you can't simply claim another's property by mowing a part of their lawn.

Stated in easy to understand terms, the legislative history of this law suggests that when considering whether someone has actually taken over possession of property “adversely” the courts will consider whether such claim was in “good faith,” recognizing that the legal tool known as “adverse possession” should be used to settle good faith disputes over who owns land, and should not be used offensively to deprive a landowner of title to the real property.

So, go on mowing your neighbor's lawn, but don't expect to claim that area of land unless you install your pool on that slice of land, and hold it there for ten (10) years.

Contact experienced local New York real estate litigation lawyers and counsel to consider the ramifications.

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http://www.kloselaw.com/lawyer-attorney-1336884.htmlDid you know that your septic system needs periodic maintenance and occasional pumping? Westchester County did not believe that enough homeowners understood this, and is obligated by New York State to protect the drinking water supply; so it is going to reimburse homeowners who have septic systems and pay taxes to sewer districts if they pump their septic systems regularly.

According to local officials, there are an estimated 40 - 45,000 septic systems in Westchester County, New York, with approximately 30,000 of those in the Croton Watershed (which supplies fresh water to an estimated 80,000 Westchester County residents). Obviously, the issue of septic management is a significant issue if the County is going to preserve the fresh water supply.

This year Westchester County implemented a law requiring septic pumpers to report data to a centralized reporting system detailing conditions of each pump out. If the conditions warrant, the County Health Department dispatches trained sanitarians for further inspection and remediation.

To encourage homeowners to help the County meet New York State guidelines, the County also passed legislation to reimburse homeowners with septic systems who are paying taxes to the County sewer districts, and who must pump their septic systems to protect their safe operation.

To protect real estate purchasers, Westchester County passed well testing laws requiring sellers to disclose testing results upon transfer of real estate.

The bottom line-- when moving to a home with a septic system in Westchester County, you should test both the water supply and the septic system to be sure that both are working and safe. Consult with your local Westchester real estate attorney.

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New home buyers of one of the 20,000 homes in Westchester County served by a private well are protected by Westchester’s Private Well Water Testing Law, which states:

§ 707.03. Water Testing Requirements Upon Sale of Real Property.

Upon the signing of a contract of sale for any property within Westchester County served by a private well, the seller of such property shall cause a water test to be conducted in the manner established, and for at least the parameters required, in this Chapter. The seller shall arrange and pay for the cost of this testing, and, within ten (10) days of the execution of the contract, provide the purchaser of the property with confirmation that the test has been ordered.

The law (effective 2007) requires that a water test be conducted upon signing a contract of sale for any property served by a private drinking water well. The test will ensure that the well water is safe for human consumption through analysis for the presence of coliform bacteria and chemical contaminants, including: bacteria (total coliform); either fecal coliform or Eschericia coli (e-coli) if the sample tests positive for total bacteria; chloride; nitrate, pH, arsenic; iron; manganese; sodium; lead; all primary organic contaminants (POCs) included in Part 5 of the New York State Sanitary Code; vinyl chloride; methyl-tertiary-butyl-ether (MTBE); and any additional parameters required by Westchester County Department of Health rule and regulation.

Under the law, only certified laboratories are authorized to collect and test the water samples, and all tests and results must be submitted to the Westchester County Health Department The law also establishes the responsibilities of home sellers and buyers requiring that any drinking water quality problems are corrected

Westchester County Private Well Water Testing Legislation, Local Law 7 of 2007, was adopted on May 23, 2007, and became effective November 19, 2007. A copy of the Local Law, including the Westchester County Health Department Rules & Regulations which supplement the Local Law, as well as additional information regarding the law, may be obtained on the Westchester County Department of Health's website at http://www.westchestergov.com/health/ .

The moral of the story-- if you are buying a new home served by a private well, you are well served to investigate the water quality through the mandated testing. Ask your New York real estate professional or attorney.

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The Town of Mamaroneck in Westechester County, New York, is serious about its drainage issues. Effective July 2007, the town officials amended the Mamaroneck Code, Section 106-49, to make it illegal to occupy any building on property sold after January 1, 2006 in the unincorporated portion of the Town of Mamaroneck unless a Discharge Compliance Certificate is issued by the office of the Director of Building Code Enforcement and Land Use Administration, or its designee.

As real estate seller, you must obtain now obtain the Certificate prior to the transfer of title, but it will be valid only if the sale is completed within 60 days from the issuance of the Discharge Certificate.

The Village of Mamaroneck, which includes parts of the Towns of Rye and Mamaroneck, added Article IV (“Removal of Illegal Sewer Connections and Elimination of Illegal Discharge of Liquids”) to Chapter 282 (“Sewers”) of the Code of the Village of Mamaroneck. The Code Enforcement Officer will issue a Discharge Compliance Certificate for each apartment building and each cooperative and condominium complex in the Village, and the Certificate must be renewed every five years.

If you are closing on your home in Westchester County, you should check with your local New York real estate attorney and title agent to be sure you comply.

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