Articles Posted in General Interest

Yesterday’s Blog dealt with what happens if you don’t diligently apply for your mortgage while attempting to buy a house. But, what happens if you got your commitment and the bank thereafter revokes it?

According to the case law, a purchaser should be entitled to return of the down payment. Kapur v. Stiefel (1999) 695 N.Y.S.2d 330, 264 A.D.2d 602 (1999). In that case, the purchaser obtained a refund where the mortgage commitment was revoked, makeing the mortgage contingency clause (generally relied upon to cancel the contract)unavailable. This is not automatic, and the question becomes whether the purchaser acted in “bad faith,” or intentionally caused the bank to withdraw the commitment. Although litigation might errupt over whether the purchaser acted in bad faith, if a court finds that they did not (based upon documentary evidence), then the purcahser should be able to get the money back from the seller.

Specifically, the Court held:

One of the must mis-understood concepts is the “Mortgage Contingency Clause,” and how you, as a home buyer, must diligently protect your right to cancel a real estate contract if you are unable to secure a mortgage. This blog is not about the situation where your Bank issues you a mortgage commitment, and then pulls out of the deal for some reason. By then, you have likely waived your mortgage contingency.

In New York State, signing a contract to purchase real estate is usually accompanied by a “downpayment,” which is held in escrow by the seller’s attorney. The downpayment is sometimes called an “earnest money” deposit. (I always thought that such term appropriately described the deposit because you are “excited” to be purchacing a house, but you must earnestly apply for a mortgage. Many times, it is traditional to put as much as ten percent of the cost of the house up as a “downpayment,” and that is the amount at risk if you do not properly apply for your mortgage.

In New York, the downpayment also represents a seller’s damages if the buyer breaches the contract and refuses to purchase the house without justification. A downpayment can represent up to ten percent, or more, of the purchase price depending on negotiations between buyer and seller.

Is there ever any tax relief? Property Taxes in New York are ever escalating. As a result, many tax payers claimed that their real estate was eligible for School Tax Relief (STAR), when many of such properties were not actually eligble. Asssessors around the State were missing out on millions of dollars. As a result, the New York State Legislature amended the law to require many New York homeowners to re-apply.

To qualify for STAR, you must occupy your home and your income plus your spouse’s income cannot exceed $500,000 per year. STAR then exempts the first $30,000 of the full value of a home from school taxes. Until now, homeowners signed up once for STAR and enjoyed the benefits year after year. However, the New York Department of Taxation and Finance is changing the rules for 2014. To continue receiving STAR benefits in 2014, a new law requires homeowners to re-affirm their eligibility. Registration started on August 19 and will end on December 31, 2013.

Homeowners currently receiving Basic Star should watch their mail. The State Taxation Department is mailing STAR codes to STAR recipients. The code is required to register. Letters were already sent to homeowners in Western New York in the following counties: Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne, Wyoming and Yates. The remainder of New York State will receive letters containing the codes by early October.

Last month we spoke about some tips for new home buyers in New York State when purchasing home owners insurance, and we solicited the help of my friend Bill Allen, an independent insurance broker at the William C. Allen Insurance Agency, Mineola, NY 11501. Here are some ways to try to lower those costs:

1) Consider installing a security system and smoke detectors: A security system that is monitored by a central station alarm company or notifies the police directly will typically provide a 5% discount. Smoke detectors are a standard safety feature in new homes and should be installed in older homes. Having them may not only save a life but could also reduce the cost of insurance.

2) Raise the deductible. Higher deductibles equal reduced premiums: A homeowner willing to take a greater portion of the risk by agreeing to paying a higher deductible in the event of a claim, will pay a much lower premium. Since insurance should only be used for catastrophic events and never for small claims, it makes sense to have higher deductible.

So, you are buying a house in the suburbs of New York City and you want to rely upon the Mortgage Contingency to protect your hard earned down payment. But, what if the bank offers you a smaller mortgage than you applied for because the appraisal came in low? Did your attorney protect you with an “Appraisal Clause?”

Every homebuyer wants to get a good deal, but how can you prevent overpaying for your new property? And why is it so important? The key to making sure the price is right is to make sure you have an appraisal and that your sales contract includes an appraisal clause.

An appraisal is a detailed report, created by an independent professional, to establish the value of the home you are buying. The value is what other buyers would pay in a competitive market. Most appraisers will compare the home you want to other homes in the neighborhood that recently sold. The appraiser will make adjustments for the unique features of your home.

Let’s face it– the purchase of a home is a life altering, stressful and often expensive proposition with hidden fees, costs, and expenses. Many times, a Mortgage Commitment comes from the bank with the requirement that the new homeowner purchase home owner insurance. My clients often call the agent who issued their automobile policy and ask for insurance, but they don’t ask the right questions, or make assumptions that hamper them later– particularly when they need that policy to respond to some sort of loss. I took up this issue with my friend and compatriate in the real estate world– William C. Allen, William C. Allen Insurance Agency, 372 Willis Avenue Mineola, NY 11501. Here are some helpful insurance tips.

Although it is an intangible product, insurance is the safety net that fills the gap when things go terribly wrong so adequately protecting a home, usually one’s largest asset, is essential. Considering the high costs associated with buying a home, many new homeowners make the mistake of trying to save money by purchasing the most inexpensive insurance they can find. This does not mean they should overpay, but inexpensive policies often omit or limit coverage and may contain exclusions (things that aren’t covered) that could end up costing the homeowner more in the long run if a loss occurs.

First time home buyers should ask trusted friends, family members or their attorney for a referral to an experienced insurance agent who can explain the various nuances associated with homeowners insurance. Because an agent’s job is to manage risk, a good one will include in the discussion what the coverages are, what different insurance companies have to offer and, lastly, ways to limit the cost of the insurance.

Restaurants try to provide a relaxing and pleasant atmosphere, so their diners enjoy a nice experience, . . . . romantic, relaxing, . . . not their customer’s home. Often, ambience and mood includes music, but your favorite spot might be dishing out copyright infringement in addition to the special of the day.

A copyright is the exclusive right to perform an artistic piece such as a song. It protects the person who created the work from unauthorized (unpaid for) use of the song. Federal law governs copyrights, which means that the law is the same regardless of whether the restaurant or bar is in New York, or another state. There is a struggle for the artists who created the songs to manage the license to play the music in a public establishment (a mini-booking fee). Some restaurants and bars actually acquire a license to play songs and television on the radio or over the speakers and televisions installed at your favorite dining establishment. More and more, as music moves to the digital environment, licensing companies are pursuing these small restaraunts and bars to “enforce” their claimed right to copyrighted work. So, when does the restaraunt need such license?

Generally speaking, restaurants with 3,750 gross square feet, excluding areas used only for parking, do not need licenses to play music and televisions. But what about restaurants with more than 3,750 gross square feet? Those establishments do not need licenses to perform music if any of the following apply:

Who knows the most about your house? Its history, its features, its quirks, its problems? The answer is you, the seller. As someone about to sell a New York home, consult your lawyer (not your realtor) about the Property Disclosure Statement. Under New York State Law, you have a decision to make– complete a 35 question exam about your house, or give a $500 credit for not disclosing to buyers.

This disclosure or admission is part of New York’s Property Condition Disclosure Act, which became law in 2002. The law applies to all land that is improved by one to four family dwellings that are used or intended to be used as residences. Condominiums, cooperatives, vacant land to be used for construction, and certain other forms of ownership are exempt from disclosure.

It sounds simple, but the law demands much more than saying, “My home is in excellent condition!” or “My home is great!” In fact, the Act requires sellers to complete a six-page form that includes questions ranging from the age of your house to whether your property ever contained a fuel storage tank to whether you have ever tested the water quality and flow.

After various district attorneys around the state found that homeowners were cheating the system, the New York State Legislature is poised to make all home owners RE-REGISTER for the STAR exemption which can result in a reduction of school taxes. According to recent reports, homeowners will have a year to re-apply for the program, with a deadline of April 1, 2014.

Under the STAR program, New York homeowners who make less than $500,000 and live in their property are eligible, making the the first $30,000 of the full value of a home from school taxes. New Yorkers 65 and older may qualify for the enhanced STAR program. That exempts the first $63,300 of the full value of a home.

Homeowners can apply for the STAR exemption on the website of the state Taxation and Finance Department.

Shaw Industries Group, a leading carpet manufacturer recently sued The Hershey Company in Federal Court in Georgia for a declaratory judgment that its Chocolate Kiss colored carpet did not infringe Hershey’s CHOCOLATE KISS trademark.

According to the complaint, Shaw has been using CHOCOLATE KISS as a color in connection with its carpets since 1993 and has used it in connection with 200 carpet styles since that time. Shaw received a cease and desist letter from Hershey’s in December of 2012 which claimed that the use of the CHOCOLATE KISS mark illegally diluted and infringed its trademark. Despite its almost 20 years of use of the Chocolate Kiss color name, Shaw claimed that this December letter was the first time that it was notified that Hershey’s objected to the use. In its response to Hershey’s cease and desist letter, Shaw noted that it was discontinuing use of the CHOCOLATE KISS colored carpets in June of 2013.

Apparently dissatisfied with Shaw’s response to its cease and desist letter, Hershey’s sent a responsive letter demanding that Shaw “immediately” discontinue the carpet. Shaw responded by commencing the lawsuit. Given the planned phaseout of the Chocolate Kiss colored carpet, it is doubtful that this case will ever go to trial, however, it presents an interesting issue of whether products named after popular goods and services do infringe or dilute the trademarks in those goods. In light of Shaw’s long use of this carpet color, another interesting issue would be whether the defense of laches would be sustained by the court. Laches is a defense to certain actions based upon the right holder failing object or do something to curtail the illegal use.