Articles Posted in Real Estate Hints and Help

When I bought my house I saw some unexplained pipes in the wall. The owners said that the house was heated by natural gas, they had never used oil. The inspector made no mention of the potential that there might have been an underground tank. I wasn’t taking any chances. I called a tank investigation company.

Under the Navigation Law of New York, the owner is absolutely and unconditionally responsible for oil contamination. In fact, the Department of Environmental Protection is entitled to clean up the site and bill the owner for the costs associated with cleanup.

Luckily, the tank inspection company found the tank (1000) gallons, and we refused to close unless the Sellers cleaned up, which they did at a cost of more than $30,000 (often not covered by home owners insurance). That would not have been a happy day for a new home owner. I learned my lesson, and I try to impart that knowledge to my clients.

So, your next door neighbor wants to “legalize,” install, or expand an airport in New York, what do you do? Hire a lawyer, participate in the process and call your legislators because any installation of an “airport” in New York requires legislative approval from the legislative body of the municipality. That approval, together with the “positive declaration” of the New York State Department of Transportation might just mean that you are dealing with an airport in your back yard.

Specifically, the Gen Bus. L, Section 249, states:

(3). Approval of privately-owned airports. No person shall hereafter establish a privately-owned airport or make an airport improvement to an existing privately-owned airport except by authorization of the governing body of the city, village or town in which such airport or any part thereof is proposed to be established or improved. The governing body of a city, village or town shall not authorize the establishment of such an airport or an airport improvement at a requested location unless in accordance with the standards prescribed by the commissioner of transportation. The local governing body of a city, village or town shall, prior to granting such authorization, request the commissioner of transportation to determine whether or not the establishment of such a privately-owned airport improvement complies with his standards.

My elderly client calls me up and says, “I can’t get a copy of my birth certificate, so I can’t get a passport, so I can’t . . . . . ”

“That’s a new one on me,” I say. It turns out that this client had been using “mary smith” for more than 70 years, but that her true name “june mary smith” (names changed to protect the innocent) appeared on her birth certificate. She had no legal papers to show that she had ever used the name “June” anywhere, even her Social Security card contained the name “Mary Smith.” Two marriages later, she wants a passport to visit her daughter, but the New York City Clerk won’t give her a certified copy of her New York State birth certificate because she can’t prove who she really is. Frustrating? Not for this spry client, but a pain in the neck because now she has to Petition the New York State Supreme Court to legally “change her name.”

That makes no sense, but it’s true and it’s happening to many people in this post- 9/11 era. We prepared a Petition for a Name Change under New York’s Civil Rights Law, Sections 60 through 65, and sent her to the court house to “walk it through.”

Every day parties hire lawyers to “resolve” a dispute, to “negotiate” a transaction, to “settle” a matter that has arisen between two entities or individuals. The attorney often jumps into the fray (swords raised), has discussions with the other lawyer, and, sometimes, those communications get garbled leaving the process damaged, the parties angry, and the matter not resolved. “Garbled” is the polite term, but a less idealistic view might suggest that the negotiations got garbled by the fact that lawyers have their own interests of professional reputation, or purse strings, or other undisclosed reasons for muddying the water. Personally, I don’t respect attorneys who practice that way, but they will all have excuses as to why the communication was presented in the way it was. So, what am I to do, I cannot contact a party represented by another lawyer?

Can I have my client contact the other client directly, and can I tell them what to say?

Truthfully, I have counseled my clients to contact the other side directly, without the filter of an attorney; but I have often been concerned that such advice, while practical, might not be ethical or responsible under our code of professional ethics. In my gut, I always thought it proper, but I had a nagging sense that other attorneys might disagree. I thank my bretheran at the NYSBar Association who have now set forth an ethics opinion sanctioning such conduct by issuing an opinion about when and how a New York attorney might advise their client to contact the other side directly.

As we all know, second hand smoke is never a pleasant experience; tight living quarters make it even worse.

Most people in apartment complexes come in with the notion that there will be some unpleasant smells associated with living with other people, and are not bothered by smoke so long as it is contained. However, sometimes that is just not possible with smoke. If this is the case, it is reasonable that a tenant would become annoyed. But what does what is a tenant to do? They can call the landlord, ask the smokers to stop, plug up any holes, etc, but what happens when they find that their efforts were in vain?

The good news is that there is something you can do. After you let your landlord know that there is a serious second hand smoke issue, preferably in writing, tenant may bring suit against their landlords on the grounds of implied warranty of habitability. Under this theory, courts have looked to the facts and circumstances of the situation to determine whether the second hand smoke is so pervasive as to continue constructive conviction, i.e. your living situation was so badly that you were not kicked out by your landlord but you might as well have been. See Poyck v. Bryant, 31 Misc.3d 699 (N.Y County Civil Ct. 2006).

Perhaps it was inevitable that after 98 years, the middle class homeowner in New York (and elsewhere) should have to shoulder more burdensome tax liabilities through the loss of the Home Mortgage Interest Deduction. According to early reports, Congress and the President are about to wage war over removing deductions for interest on mortgage payments.

See one article here.

Bottom Line– the Federal Government needs more money, and the little guy, mortgaged to the hilt is gonna pay.

In today’s real estate market of short sales, mortgages underwater, depressed prices and a buyer’s market, where financing can be a tricky and arduous journey there is one contingency that may protect the buyer– the appraisal contingency, often negotiated by attorneys for real estate buyers.

Stated simply, the appraisal contingency is designed to give a buyer the right to cancel the contract if the home does not appraise for the price the buyer agreed to pay. Take the case of a Florida couple who contracted to buy a house from for $620,000. The purchase and sale contract provided that the sale was “contingent upon this property appraising for no less than $620,000.” The purchasers commissioned an appraisal which apparently came in at $560,000, and refused to close.

In response, the Sellers secured an appraisal which valued the real estate at $635,000. The sellers sued for breach of contract, arguing that any appraisal of $620,000 or more obligated the purchasers to buy the house. The purchasers argued that since it appraised for less (by their appraiser) they could terminate. The Florida appellate court favored the buyers, ruling: “In our view, ‘appraising for no less than $620,000’ means that no appraisal may be less than $620,000,” the court ruled.

So, you want to buy a house, condominium, cooperative apartment or vacant land with your significant other in New York. You have been serious about this life partner for years, but you aren’t bound by the typical bonds of legal matrimony.

Did you consult with your real estate attorney, did you ask that attorney about a partnership or “co-habitation” agreement? What are you going to do if you are no longer interested in “cohabiting?” Too many times, people don’t ask these questions, and get burned later. Take for instance the common predicament of this individual.

As a real estate lawyer, I always ask unmarried couples whether they want a basic partnership agreement about what happens when they dissolve their relationship from a real estate perspective. In addition to a real estate partnership agreement, non-married couples should consider a cohabitation agreement, which is a contract that includes provisions about each partner’s separate property, debts and financial responsibilities and spells out the division of goods, property and responsibilities should the relationship dissolve.

Do you hire a doctor or a lawyer without checking their licenses, their pedigree, and their referrals? So, why is it that when it comes to investing in their greatest asset (the home), so many people become victims of dishonest contractors who demand large advance payments for projects, and then fail to complete the work fully or competently. What are your rights.

In Rockland County, there are several resources designed to protect us from unscrupulous home improvement contractors. The first, Rockland County Code, Section 286, empowers the Office of Consumer Protection to license and regulate nearly all home improvement contractors and transactions. [Rockland County Law can be found at, Chapter 286].

The comprehensive law covers everything from licensing individual contractors; (286-7) the contents of home improvement contracts (286-12); the prohibited acts (286-10); the penalties for not complying with the law (286-21); and the powers of the Board. While the nuances of such law are complex, the goal is to provide minimum standards to avoid the main problems that homeowners have with contractors.

Financial planning is essential when you are buying a house– the bank checks and you want to know what your monthly nut is going to be. But, you are buying an old house which appears to have several exemptions and possibly an absurdly low tax assessment. Will your taxes go up after you close on the house?

In New York, an assessor may not selectively reassess your new property unless she is prepared to explain why a reassessment is necessary while other properties’ assessment go unchanged. Why? Because reassessing particular properties or particular neighborhoods may result in discriminatory enforcement of tax laws.

Although the highest court in New York, the Court of Appeals, has not specifically articulated a ruling on selective reassessment, lower courts have even if the decisions have been split. The divided case law results from a balancing of considering the statutory and constitutional requirements of equality in assessing properties against evaluating individual facts on a case-by-case basis. In Feigert v. Assessor of the Town of Bedford, 204 A.D.2d 543, 614 N.Y.S.2d 200 (2nd Dep’t 1994), for example, the court upheld a reassessment of a property based on proof submitted by the petitioner that a prior assessment was based upon a resale of the property. In Towne House Village Condominium v. Assessor of the Town of Islip, 200 A.D.2d 749, 607 N.Y.S.2d 87 (2nd Dep’t 1994), on the other hand, the court struck down a reassessment that was based solely on a property’s conversion from an apartment complex to a condominium property.

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