Real Estate Hints and Help

January 24, 2010

Why no Property Disclosure Statement in New York?

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.

January 20, 2010

If your thinking Rockland County, Pearl River–NYTimes article of the Life and Times.

by Peter Klose

So your thinking of living in Pearl River, Rockland County. Originally called Muddy Brook, the town was renamed in around 1870 after a resident said he had discovered pearls in mussels from the waterway.

The community boasts wonderful people, active community involvement and modestly priced homes. Read a recent New York Times Article here, and hire the very best real estate attorneys in Rockland County.

January 14, 2010

RULES TO CLARIFY COST OF MORTGAGES AND TO GIVE NEW YORKERS CLARITY?

by Peter Klose

As of January 1, 2010, the federal government will enforce rules that require mortgage lenders and brokers to prepare a three-page ‘Good Faith Estimate’ report that provide home loan estimates to consumers. Implemented by the Real Estate Settlement Procedures Act (RESPA), lenders and mortgage brokers must now give consumers standard estimate forms within three days of receiving loan applications. RESPA aims to prevent millions of Americans making poor loan choices particularly those who do not know that the lowest loan rates may not be the most beneficial option. To distinguish and compare plans with different combinations of rates, fees, and other terms, the ‘Good Faith Estimate’ report standardizes lender estimates by requiring lenders to provide an ‘origination fee,’ or payment to establish a bank or broker to handle the loan process, cannot increase. Other charges including title insurance, however, may increase.

Opponents of the new rules argue the new forms will not only add costs to lenders but ultimately make no mark on the shopping choices of consumers who often end up basing loan decisions on the recommendation of a real estate agent or broker.

When will the Banks tell prospective borrowers the true cost of their loan by giving them the Annual Percentage Rate (APR). As many people don’t know, the APR is the only true cost comparison when it comes to shopping for a mortgage. The APR is a function of the cost of the money over the entire course of the loan, with the bank fees and costs rolled into the calculation. If each broker and lender confessed how their fees impacted the actual cost of the loan, consumers would be in a position to quickly and easily understand which loan cost more.

January 11, 2010

Tools to Grieve your Taxes Exist– the Government Provides Them in Dutchess County, New York.

by Peter Klose

Real Property Taxes are at the front of everyone’s mind these days because property values in New York have declined so dramatically. Did you know that the tools to grieve your taxes are often right at your finger tips.

For example, in Dutchess County, the Real Property Tax Service Agency’s Parcel Access system provides tax assessment information for your parcel and your neighbor’s parcel, including development plans, property tax estimates and other information supplied by local municipal governments. Updated twice a year to coincide with the submission of Tentative Assessment Rolls every May and every July of each year, the Parcel Access allows Search Tools by type of property, name of debtor, and by map.

The website’s main objective is to function as a tool for real estate buyers and sellers to have access to and view assessment information. If a seller disagrees with a listed assessment, however, value the home owner may “grieve” those taxes by seeking a review first by the assessor and then by a formal review with the Board of Assessment Review.

November 25, 2009

Recent Highlights in the Neighbor Wars-Adverse Possession

by Peter Klose

This blog has identified recent legislation in the State of New York discussing adverse possession. Adverse possession is a method of gaining title to property based upon use of the property (not written). Although not a favored means to procure land, depending upon the facts a person may acquire title to land by adverse possession if she holds the property in a manner that conflicts with the rights of the true owner for a period of time.

There are five elements that establish a claim of adverse possession in New York. Possession must be 1) hostile and under claim of right, 2) actual, 3) open and notorious, 4) exclusive, and 5) continue for the specified period as determined by jurisdiction. Adverse possession is generally a question of fact to be decided by a court. Since the enactment of the statute and recent decisions by the Court of Appeals in New York, it is important to consider what judicial department you might be located.

For example, in the First Department, in the case entitled Eller Media Co. v. Bruckner Outdoor Signs, the plaintiffs constructed a billboard on a disputed parcel and surrounded that billboard with a chain-link fence. The defendants appealed the trial court’s summary judgment in favor of the plaintiffs arguing that the disputed parcel was held by a city for a public purpose. The court disagreed and determined that the plaintiffs or claimants had not only satisfied the elements of adverse possession because its use was hostile, open and notorious, exclusive, and continuous for more than the ten year statutory period, but that the parcel was not held for a public purpose and therefore not immune to the plaintiff’s adverse possession claim.

At Klose & Associates, we handle real estate litigation including adverse possession claims in the first department. You should always contact a specialized New York real estate litigation attorney if you have concerns about adverse possession.
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November 11, 2009

Mortgages – Fraud Watch for Homeowners in New York!

by Peter Klose

You hear the old adage– “if its too good to be true . . . . ” Homeowners in New York and elsewhere should be on the look out for the newest form of fraud on the rise–“house theft.” Under various permutations of the fraud, con men and thieves conspire to to take ‘ownership’ of a home through various scams and false documents. In one version, the group acquires a house then ‘sells’ it to their associates, who obtain a loan from unsuspecting banks. The fictitious ‘seller,’ gets paid the loan proceeds, and then shares the sale proceeds with the fraudulent ‘buyer.’

The FBI estimates that from 2007 to the 2008, the reported cases of house theft have jumped 36% to an estimated 64,000 incidents. House theft, also known as title theft, most frequently occurs in larger urban areas particularly in cities with many vacant properties such as Detroit and Miami.

In reaction, several new online services offer free help to protect homeowners from house theft. Among its free services, www.ePropertyWatch.com provides informal house appraisals, monitors public real estate documents, and alerts homeowners to possible criminal activity. ePropertyWatch will also provide information on recent sales and foreclosures in the user’s neighborhood and observe long-term changes in the median sale prices relative to a ZIP code.

October 19, 2009

Unintended Results of New York’s New Power of Attorney Forms.

by Peter Klose

I get calls every week from family members concerned that another family member might be abusing a power of attorney issued by an elderly or infirm client. We take these concerned calls very seriously, as did the New York State Legislature, who recently amended the General Obligations Law relating to Powers of Attorney. There are some traps for the unwary signer, however.

New York’s new power of attorney law contains language that “automatically” revokes old powers of attorney, unless you specifically state that it does NOT. If you are asked to sign a new Power of Attorney in New York after September 2009, think long and hard about the effect of signing such form. For example, if you are a recording artist, did you sign an agency agreement; a real estate partner, a power to the managing partner; a life insurance recipient, a right to such benefits. If so, you should be careful not to revoke any old powers of attorney.

Bottom Line– You need to be educated to be smart. Ask your attorney what the effect will be if you sign a Power of Attorney.

September 23, 2009

Did You Know that Septic Tanks and Fields Can “Fail?”

by Peter Klose

We recently discussed hidden dangers lurking under the ground with USTs (Underground Storage Tanks-Fuel). A similar problem exists with aging septic tanks and fields in New York State. Who’s responsible for finding the problems? What are the problems? How are the problems with septics fixed?

These are all common questions, especially when you are buying a home without municipal sewer and water.

Problems that can arise with septic tanks include tanks which have not been cleaned, cannot be located, or are buried too far underground to inspect. Failures include inability to absorb and disperse water (with dye); failure to remove the bacteria, or backups. Sometimes the septic field is not even located on the property you are buying.

August 21, 2009

Don’t put your head in the sand when you get sued for Foreclosure in New York.

by Peter Klose

Have you been sued for foreclosure in New York State, are you ignoring the certified mail or the papers taped to your door. Well, that’s not the best response to a foreclosure action, where they want to take your home away. Increasingly, as this mortgage foreclosure debacle ripens, courts, litigants, and attorneys are learning that foreclosure is not always the slam dunk, lock the door, win/win case that it might have been when there were fewer foreclosures. Stand up for yourself, ask an attorney about your rights, read the papers and and fight back if the facts warrant. See my prior New York State Real Estate Lawyer Blog Entry.

In past decades, bankers gave millions of mortgages to entice new homeowners to leverage their dreams, and then repackaged that leverage (loans) to sell to investors, taking their cut, nary a worry for the borrowers or the lenders. As a result of the frenzied repackaging of such loans, it turns out that many of these banks and lenders lost papers, misplaced paperwork, forged signatures, and inaccurately dated documents, creating a messy jumble of paperwork, and making it sometimes impossible to decide who owns the right to commence the foreclosure, which bank owns which mortgage. This is where you might have a chance.

As the wave of the foreclosure crisis deepens, courts are increasingly challenged because homeowners rarely show up to court to fight the process, rarely have the money to hire competent lawyers to sort out the problems. So, increasingly, judges end up examining the banks’ papers, and ruling on the affidavits before them.

August 15, 2009

WHAT ARE DECLARATION OF RESTRICTIONS IN A SUB-DIVISION AND WHY SHOULD YOU READ THEM OR ASK YOUR ATTORNEY ABOUT THEM?

by Peter Klose

The “suburbs” mean “sub-divisions,” but do you understand what a “sub-division” is? When you purchase real estate in New York State, you should be sure you understand what it means to be purchasing in a sub-division.

Take the typical scenario– Developer buys a large tract of land with the idea to break it into smaller portions of land, to build houses. Often, the sub-division of that land requires zoning and planning approval from the local village or town. During the process, the planning agencies and the Developer may draft different agreements or requirements into the “sub-division map” where you are buying your house. Generally, in addition to the local laws, you, as the owner of the smaller parcel are going to be required to abide by the terms of those “declarations of restriction,” those “easements,” those statements on the “filed sub-division map.” They could be as mundane as not permitting chickens in the sub-division, to being as complex as requiring specific types of architecture. Regardless of their content, you, as the owner are responsible to live by them.

A declaration of restrictions is a set of limitations placed on the property rights of an owner. A homeowner in a subdivision, for example, agrees to comply with the declaration of restrictions in a signed agreement with a subdivision or condominium developer. These agreements run with the land and bind your future vendees, heirs and assigns.