General Interest

August 19, 2020

Tenancy by the Entirety

(Nyack, New York) I wanted to follow up on my prior blog post about “tenants by the entirety.” As I pointed out in that post,

It is interesting to consider what other “ramifications” owning property as tenants by the entirety might have. Given the “undivided” nature of the ownership relationship, a question about whether a creditor might be able to somehow “levy” against one spouses “share” of the real property might arise. Generally, most commentators suggest that the undivided nature of the interest makes one spouse’s interest in the property indivisible, meaning that the creditor cannot force the partition of the tenancy by the entirety without the debt being against both tenants, or spouses.

In New York, when a married couple purchases real estate the interest that the married couple has in the property is called a tenancy by the entirety. In that form of ownership, each party is said to have an undivided interest in the whole property. It is as if the married couple is “one person” in the eyes of the law. This type of ownership has certain benefits for the married couple. One of those benefits is that when one spouse dies, the other spouse automatically becomes the owner of the entire interest in the real property. So, in the above example, when one member of the married couple dies, the property would automatically pass to the surviving spouse.

July 14, 2020

The State of Fair Housing in These Times of Change.

by Peter Klose

Before the recent protests and resurgence of the Black Lives Matter movement, I was asked by a group of Realtors to present a continuing education program on Fair Housing. I poured over the various laws in New York, particularly in Rockland and Westchester County to find the status of the law. With help from the Rockland County Division of Human Rights, I presented a fairly bland state of affairs to a mostly attentive group using hypothetical scenarios. Though I have dealt with some complaints over the years, as an attorney, I never really saw the how discrimination worked or operated in my communities. Until today. Today, I stumbled upon this fine piece of investigative journalism, and I commend all to read and watch the documentary.

To summarize, Newsday engaged the Fair Housing Justice Center in Long Island City, to help structure and implement testing and train testers, and then sent the results to two nationally recognized experts in fair housing standards to analyze the findings. The results are astounding.

By way of refresher, the federal Fair Housing Act prohibits discrimination in housing related transactions because of race, color, religion, national origin, sex, disability or familial status. Many state and local laws also prohibit housing discrimination based on several additional protected classes. The Fair Housing Act applies to a wide variety of housing transactions, including rentals, sales, home mortgages, appraisals and homeowners insurance. Landlords, real estate agents, lenders, insurance companies and condominium, cooperative and homeowner associations must not discriminate because of one’s membership in a protected class.

April 3, 2020

COVID -19 Response from a Legal and Estate Planning Perspective- Protect your Family.

by Peter Klose

(Nyack, New York- April 3, 2020) We all hear the horrible, and getting worse, stories of loved ones sick, suddenly finding themselves in the hospital, incapacitated, and no longer in touch with their family members, unable to pay their own bills, manage assets, or even make medical decisions. With the outbreak of Coronavirus (COVID-19), this scenario is a growing concern, and unfortunately, a growing reality for many.

What are common issues families face when a loved one is incapacitated and what Estate Planning documents might give all a piece of mind:

* No power to make medical decisions if you are unable to communicate your medical wishes;

March 5, 2018

Privacy and Social Media: How Your “Private” Content is Still Discoverable in a Lawsuit.

by Peter Klose

With all of the “fake news” making history in our world, it is important to remember that, as ubiquitous as Facebook may be, what you post may not be so “fake” when it comes to your personal litigation position. If you have a lawsuit, whether it involves claims for personal injuries, or adverse possession, your postings on Facebook may become more public than you think.

Many social media users change their Facebook to “private,” in the erroneous attempt to remain “private,” assuming that their posts are private, viewable by themselves and selected “friends.” The same goes for “private” messages shared over Facebook messenger and their selected recipient.

In today’s social media frenzied world, however, Facebook posts and messages may not be so “private” if they tend to prove or disprove claims you make in a court case. In that regard, New York State’s highest appellate court recently ruled that “private” social media posts, particularly Facebook posts can be requested and made available to a court in “discovery,” the pre-trial procedure where each party requests evidence from the other.

February 16, 2018

Airbnb and the sharing economy: is it legal to rent out my home?

by Peter Klose

With the rise of the so-called “sharing economy,” more homeowners have been looking to rent out their properties in the short term on websites such as Airbnb to earn extra cash. However, as short term rentals have increased in popularity, municipalities across the United States have begun considering legislation and instituting stringent regulations or outright bans, often with hefty fines for violators.

Following the law is critical to listing on Airbnb, because you (and not Airbnb) can be held solely liable for the illegal listing. Many cities have taken to scouring the website to track down listings that are unapproved, and a new law signed by Gov. Andrew Cuomo in 2016 imposed fines of up to $7,500 on those caught illegally listing on the site. Critics of Airbnb argue that by making it easier to rent out apartment units for short terms, less units are available on the wider market which drives costs higher. Since 2010, it has been illegal in New York to rent out a whole apartment for less than thirty days (although the law makes an exception for when you are staying on the property for the duration of the stay). State lawmakers saw Airbnb as a tool to evade this law, and argued that stricter fines were necessary in order to stop the illegal rentals.

If you would like to rent a house on Airbnb outside of New York City, the laws are different than those for apartments. Your municipality could have an ordinance banning Airbnb already on the books (often rules prohibiting bed and breakfasts apply to Airbnb too), unbeknownst to you. One local resident of Grand-View-on-Hudson, in Rockland County, rented his home on Airbnb for New Years Eve. Not only did he return to over $100,000 in damage from the previous night’s party, the village’s mayor later told Lohud.com that Airbnb listings were in fact prohibited under local rules. (Not necessarily accurate)!

January 5, 2018

Real Estate Broker “Dual Agency”: What it is, and what it means for you in a real estate transaction.

by Peter Klose

Most homebuyers and sellers are accustomed to the usual model of agency: the seller and buyer each have a real estate “agent” representing them during the showing, negotiation and final closing of a real estate transaction. Typically, the realtor is an “agent” who works on behalf of a buyer or seller with “fiduciary” responsibility to act in their best interest. Wikipedia defines “fiduciary” as “a person who holds a legal or ethical relationship of trust with one or more other parties . . . and . . . entrusted” to act with loyalty to their principal- either the buyer or the seller.

But, what happens when the buyer and seller are both represented by the same agent, and that agent is typically being paid by the Seller under a multiple listing agreement? Say one agent has a listing, a prospective buyer calls the number on the web-site and gets that agent on the telephone, and then shows that house to the caller. In New York, most real estate brokers who represent sellers have a written agreement to be paid a commission at the time of closing. When the prospective purchaser calls about the house they want to purchase, they don’t contemplate that the agent is working for the seller.

In New York, that listing agent can show the house to the buyer, but must disclose that they will then be working both for the seller and the buyer, a “dual agent.” This arrangement is more common in small real estate markets with fewer properties and firms, but can also occur at a large real estate brokerage firms, where buyers and sellers have different real estate agents licensed by the same company. Dual agency is legal in New York State (but not all states) so-long as conditions for written disclosure are met. New York requires all real estate agents and brokers to specifically disclose their relationship to the transaction, buyer or seller or both.

January 3, 2018

The hidden costs behind title insurance: How title companies used to pay “inducements” (kickbacks) to encourage lawyers and realtors to use them and the 2018 New York State regulations designed to stop them.

by Peter Klose

Title insurance is a must for all home buyers in New York. A title company searches the public record to identify potential issues with the title. Common problems include things like old liens, judgments, encroachments, survey overlaps, outstanding mortgages or unpaid taxes against the property being purchased. Title companies play an important role in real estate transactions because they act as a “risk mitigater” because they verify that the piece of property is unburdened by title issues and “indemnify” the owner and lender for such problems.

There are two types of title insurance; owner title insurance and lender title insurance, both of which you pay for at the closing if you are mortgaging your home. If a person emerged to claim that they were the rightful owner of the house, or had a judgment or lien against the house, then there might be title “claim” to the applicable insurer. Assuming the title insurance company agreed, and had not excepted coverage in the original policy, lender title insurance would reimburse the lender the amount they lent to purchase the home (or your title was damaged), or might hire title attorneys to repair the problem. If you had owner title insurance policy, you would be paid for the value of the loss, or the title insurance company would work to sort out the title claim (indemnify you for your losses, including attorneys fees to repair the title issue).

Either way, title companies are integral to the home buying process protecting consumers from purchasing a home that could present headaches down the road. But how do we choose a title company and how much will the buyer and seller pay at the time of closing?

December 14, 2016

Black Ops versus Tactical Ops-Beer Naming Becomes a Trademark Battle.

by Peter Klose

By the time the 1970s rolled around, there were about fifty breweries in the United States, according to The Economist. A slew of new laws promoting tax breaks for small microbreweries spurred an era of innovation and explosion of smaller, craft breweries. Today, there are over 3,000 breweries, making the industry both crowded and competitive.

One of the prominent issues that arises, according to this article from NPR.org, is the challenge of finding a name that is not already taken by another brewery. There is a dearth of names that have not already been trademarked by others that connote a positive association with beer. Consequently, there have been more legal issues popping up with name trademarks because so many designs and names infringe on others’ similar ideas.

With so many breweries around the country, people do not have malicious intention to copy others’ names and designs, but there is inevitable overlap with so much market saturation. Frequent legal issues emerge because there are public misconceptions about the fact that merely providing state registrations and ownership of domain names ensure ownership of the copyright/trademark; but that is not always the case. A trademark attorney navigates murky waters where there is no national database of beer brands/trademarks, and conducts common law and internet searches – to see if there are overlapping images or names of other breweries. Intellectual property is vital to creating a strong business, and this web of legal issues associated with craft breweries’ trademarks illustrates that.

October 31, 2016

Will a Defamation Action Lie if you Call your Neighbor a Witch?

by Peter Klose

That is the question posed in a wonderfully entertaining and historically interesting article written by Dave Kluft from Boston’s firm Foley Hoag.

As his article points out, accusations of being a “witch doctor” and the use of “witchcraft” have served as a basis for defamation and slander suits around the country, and still percolate through various courts. In New York, witchcraft is no longer considered a crime, so it is unlikely to be considered slander per se, however, you should still mind what you say.

In defamation per se cases, New York law doesn’t require a plaintiff to prove that they were “damaged” by the offending words, but a jury will decide how much or how little injury occurred. Damages are assumed only where the person defaming someone alleges that the injured person:

October 27, 2016

Avoid Misunderstandings Over Fixtures and Furnishings.

by Peter Klose

The Closing is scheduled for 1 PM at the office of the Bank Attorney, you arrive at your dream home, ready to sign all of the mortgage documents, and close; when you realize that the sellers have moved out, taking all of the covers to all of the electrical outlets, light switch plates, architectural stained glass windows in the bathroom and mail box. Fact or fantasy? That’s a real example from everyday real estate practice in upstate New York, and lead to a very unpleasant closing.

Among the standard details of a real estate contract is a paragraph innocuously labeled “personalty” or “personal property.” First time home buyers sometimes pay close attention to the details in the contract, but not always:

Personal Property: Included in this sale: (a) The sale includes all of Seller’s right, title and interest, if any, in and to: