Real Estate Hints and Help

November 1, 2010

New York Legislature Proactively Trying to Level the Playing Field in Residential Foreclosures.

Attorneys in New York are keenly aware of the new representations, but do consumers know how seriously the New York State Legislature is taking the mortgage foreclosure crisis?

The Office of Court Administration sets forth the Proposed Language and Provides consumers with the following warning:

N.B.: During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities. These insufficiencies include: failure of plaintiffs and their counsel to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits which falsely attest to such review and to other critical facts in the foreclosure process; and “robosignature” of documents by parties and counsel. The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.

November 1, 2010

Attorneys Fees to Tenants in Landlord Tenant Disputes in New York.

by Peter Klose

Did you know that if a landlord includes a provision in the lease that awards fees to the landlord in a summary eviction proceeding, the tenant may also be entitled (as a matter of statutory law) to seek attorney’s fees?

Real Property Law § 234 provides:

Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease … there shall be implied in such lease a covenant by the landlord to pay the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.

September 24, 2010

More on the Power of Attorneys in New York.

by Peter Klose

As reported last year around this time, New York State revised its Power of Attorney Laws.

A Power of Attorney is a very powerful legal document which grants legal authority or “power” to another person to act on your behalf in a legal or business matter. The person authorizing an individual with power of attorney is known as the principal. The person being equipped with the power is known as the agent.

Retroactive to September 1st, 2009, the New York legislature has amended the law and the appropriate forms to address several concerns raised by various attorneys and trade associations. These revisions relax the 2009 law, including:

September 24, 2010

More on the tony New York Bed Bugs-.

by Peter Klose

As reported in past entries on this Blog, bedbugs complaints and media reports of serious infestations in hotels, offices, and residential buildings are on the rise in New York City. As a result, bedbug disclosure is now required.

In a nutshell, when a renter and landlord negotiate a lease in New York City, both the tenant and the landlord must sign a disclosure listing the prior history of bedbug infestations reported in either the apartment or building during the preceding year. As with any law, there is an adjustment period. Before sighing with relief, landlords are worried that these disclosure forms will increase the length of time empty units remain vacant. Accordingly, as with any new law, changes may be in the horizon as New York City landlords lobby to have the disclosure modified or eradicated (like the bugs themselves). For example, they argue that the form is too broad because it makes no distinction between serious infestations and minor ones. Really– do you care?

The Bottom Line– as renters struggle to stay “infestation free,” landlords struggle to keep ahead of the game, proving profitable for exterminators.

April 29, 2010

HIRING A REAL ESTATE ATTORNEY IN NEW YORK.

by Peter Klose

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.

April 21, 2010

CREATING A CONSERVATION EASEMENT IN NEW YORK.

by Peter Klose

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.

April 16, 2010

Local Hudson Valley Lawyers Can Help Avoid the Pitfalls of a Weekend Retreat!

by Peter Klose

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.

March 13, 2010

What is a Planning Board in New York?

by Peter Klose

Planning Boards play an important role in shaping how our community will look, feel, act and react. In a very real sense, the Planning Board is charged with overseeing the “orderly” development of real property, and in the process shaping the “public” face. Developers want the best return on their “investment,” homeowners want to protect what they know, and the Planning Board must implement the laws as enacted by the Village, Town, County and State, a difficult tight rope for a Board comprised of local volunteers and neighbors.

The process begins with an application to the Building Inspector. The homeowner (we’ll call her the “Applicant”) completes an application with the Building Inspector, who reviews the proposal (or “Site Plan”) to see if it meets various code requirements– is the lot large enough to support the planned structure, is drainage adequately directed to prevent run off, are the plans professionally drawn and contain all of the technical data required by New York State’s building code. The Building Inspector next refers the Applicant to the Planning Board with instructions to “post” notice of a “public hearing.” In Nyack, we meet the first Monday of every month to hear these applications.

The Planning Board receives the Site Plan and the Building Inspector’s opinion, and we review against our local Zoning Code and Comprehensive Master Plan. In Nyack, our Comprehensive Master Plan was adopted by the Village Board on January 11, 2007 (a process that took many years of hard work by various civic minded volunteers). Our Comprehensive Master Plan (available on line or at the Village Hall) sets the tone from its first sentence, “The Village of Nyack is a special place, proud of its historic, scenic and socially heterogeneous character– quite unlike the suburbs to the west.”

March 11, 2010

What is a Public Adjuster and Why are they Calling?

by Peter Klose

Fire quickly causes tragedy, but don’t let the aftermath cause further tragedy. All of us have been touched by the trauma and tragedy of a structure burning, all of our life long possessions up in smoke. If the house has a mortgage, chances are, there is insurance to protect those assets.

Unfortunately, the fire often causes insurance problems because homeowners don’t know or understand the type of insurance they have. Was it a replacement policy, are there limits to such replacement; what about the contents of the house? These are all questions that a homeowner has immediately.

Following the fire, the insurance company typically sends an independent company to investigate and to assess the damage to the structure and to the contents. There is another type of insurance adjuster that operates in a parallel insurance universe called “Public Adjusters.”

January 24, 2010

Why no Property Disclosure Statement in New York?

by Peter Klose

For years most attorneys representing sellers of real estate in New York State have been counseling not to complete a Property Disclosure Statement. This recent case is an example of why, in New York, the Property Condition Disclosure Statements (PCDS) can cause trouble.

Sellers in New York are required to either “disclose” what they know on a 32 question Property Disclosure Statement, or give the buyers a $500 credit in lieu of such disclosure. The problem, however, is that these property “disclosures” are mini-representations, which can lead to all sorts of claims for misrepresentation, fraud, or concealment. The question for the disgruntled buyer is always whether, when completed and delivered, the owners-sellers may be liable for buyer actual damages stemming from any willful failure to describe the property conditions asked about on the “form.”

In one recent case, the the buyers purchased a residential property from the defendants in “as is” condition after having been given notice through the form PCDS that the Sellers (defendants) of a previous kerosene leak on the property. Shortly after taking possession of the property, however, the plaintiffs discovered that the septic system had failed, the heating system was inadequately established, debris had been left on the property, kerosene had spilled in the basement, and the house was infested with mice.