Cooperative and Condominium

October 24, 2024

Eviction Action or Ejectment Action?

Our firm is involved in many situations in which one party seeks to remove another party from property, such as a house, cooperative, or condominium unit. However, the situation underlying the attempted removal will often determine the correct legal method for effectuating said removal.

The two main legal remedies are an eviction action and an ejectment action. Keep in mind that there may be situations in which an experienced attorney needs to use his legal judgment to determine which type of action to bring. First, we will cover an eviction action.

Eviction actions are generally used in ordinary landlord-tenant matters. In most cases, there is a tenant who is renting property from the property owner, who is the landlord. There usually is a written lease, but not in all situations. There are generally two types of eviction actions. The first is a non-payment, in which the tenant has failed to pay her rent. The second is a holdover, in which the tenant’s lease has expired, or a situation in which the tenant never had a lease and has a month-to-month tenancy.

September 24, 2024

Legal Issues Relating to the Sale of Inherited Property

By Weiss & Weiss

Our firm has often been consulted by clients who inherited a house from their parents, and wish to sell the property, as they may have moved out-of-state, and the property became vacant after the passing of the last parent.

Usually, this is a straightforward transaction, which often requires legal assistance in acquiring legal authority to sell the property as part of an estate. This involves experienced counsel filing for letters testamentary (if there is a will) or letters of administration (if there is no will). Once the Surrogate’s Court issues the proper legal document, then the sale can proceed.

However, there is often another issue, which may become known to the surviving children only after their parents’ death. It is possible that the parents borrowed against the property, even after the original mortgage that they took out to purchase the premises was paid off. Often a reverse mortgage is taken out by the elderly parents, in order to raise funds to continue to live in the house. Generally, such mortgages are only available to homeowners over the age of 62. Once the loan funds are disbursed, there are no monthly payments. The full amount of the loan would then be due after the death of the last borrower.

September 18, 2024

Considerations When Making a Will as to Potential Property Sharing by Heirs

By Weiss & Weiss

Clients consulting our firm with respect to will drafting often ask how to leave a house or cooperative apartment to potential heirs when there may be more than one surviving child. Perhaps a person owns a house and wants to leave it to all three of her children in her Will. Concerns arise when one of the children has been living in the house all of his life or only one of the children frequently enjoys the use of the house as a vacation home. In either case, the remaining children have no use for the property. The well-intentioned parent may be inadvertently causing a family dispute after her death. If the child who wants the property does not have the financial ability to buy out his siblings, by mortgage financing or otherwise, the remaining siblings may have no choice except for engaging an experienced attorney to commence a partition action.

The person making the Will also needs to determine whether she wishes for her children to inherit in equal portions. For example, if the house is of particular interest to one child and there are other assets available to be distributed to the other children, the parent may decide to leave the other assets to the other children, so that each child receives substantially similar disbursements.

We have reviewed documents prepared by others providing that a person can continue to reside in the house until a particular triggering event such as vacating the house or death, after such event those who will inherit the property can have full access and sell it if they wish. Such a document may provide that the occupant pay the property expenses while occupying. This arrangement is not one that we recommend because it delays the delivery of the asset to the intended owner(s) and the occupant may not meet property upkeep demands, which provisions are difficult to enforce.

October 6, 2022

Couple or Throuple? Succession Rights in New York Rental Units

By Weiss & Weiss

Our firm often fields inquiries from clients regarding successor rights in New York residential rental apartments. First, experienced counsel should determine whether the premises are subject to rent regulation. Rent regulation in New York State applies to many, but not all, residential units. It is more prevalent in New York City than in its surrounding suburbs. However, it does also cover some rental units in Westchester and Nassau Counties.

Assuming that rent regulation does apply to the premises, then the current occupants may be allowed successor rights once the original party on the lease either passes away or vacates the premises. For example, let’s assume Grandma rents an apartment subject to rent regulation, and only her name is on the original lease. As Grandma ages, some of her grandchildren move in to take care of her, and eventually become permanent occupants of the premises. Even though they are not listed as tenants on the original lease, these individuals, as family members occupying the premises, may be entitled to a successor lease once Grandma passes away or moves out of state.

A recent New York City Court case raises new possibilities regarding the legal definition of “family members” as they apply to more modern, non-traditional relationships. The case of West 49^th Street, LLC v. O’Neill involved a New York City apartment which was occupied by three unmarried individuals, only one of whom was on the rent-stabilized lease. After the death of the named tenant, one of the other individuals claimed that he was a non-traditional family member, despite the fact that the third individual, and not him, was the “life partner” of the deceased for over twenty-five years.

April 11, 2022

Cold Feet- Do I have to Close?

By Weiss & Weiss

We have encountered parties to real estate transactions who get “cold feet” between the time of contract signing and closing. These persons may seek to break the legally binding contract that they have signed and cancel the deal. This post will address when failing to perform a real estate contract may be permitted and the risks involved should the contract not be able to be cancelled.

First, this issue will be examined from the perspective of the buyer. Real estate contracts typically contain conditions, such as the property will appraise for at least the contract price, that the buyer will obtain a mortgage commitment, board approval will be issued if the purchase involves a cooperative apartment and there will not be an insurmountable title issue. If any of these conditions are not met and the buyer’s attorney notifies the seller’s attorney within the timeframe required by the contract, the contract can be legally cancelled and the downpayment will be refunded to the buyer.

At times, a buyer attempts to use issues that should have been addressed during the pre-contract due diligence period to cancel the contract. Most contracts state that the buyer has conducted all due diligence and inspections of the property before the contract is signed. The buyer’s concerns about such issues as property conditions, the amount of real estate taxes, or monthly carrying costs of a cooperative or condominium unit must be raised before the contract is signed and are not causes to unravel the contract. A buyer cannot cancel the contract merely because he no longer wants the property or thinks he cannot afford it.

December 1, 2021

Pre-Litigation Settlements of Partition Matters

By Weiss & Weiss

Our firm receives many inquiries from co-owners of properties. As longtime readers of this blog are aware, a partition action can be brought in the appropriate Court when co-owners cannot agree on the disposition of real property. Such an action would demand that the Court appoint a Referee to determine the respective shares of the co-owners, and, if necessary, actually sell the property.

However, there are often situations in which the parties may agree to the disposition of the property without resorting to actual litigation. In this pre-litigation period, the parties, through their attorneys, may negotiate a resolution in which either one party can buy the other’s share of the property, or agree to jointly sell the property and share the proceeds. In such a situation, experienced counsel should prepare a written agreement, to ensure compliance with the parties’ understanding.

What provisions should be included in such an agreement? The agreement should first state that the parties are co-owners of the property, and the exact amount of their percentage shares of ownership. Next, there should be terms for the disposition of the property. For example, two brothers inherit a house from their parents, and agree to sell the property and share the proceeds equally. The agreement should state that the parties will cooperate in hiring a licensed real estate broker to market and sell the property. The agreement may even include more details, such as the name of the real estate broker, and the initial listing price for the property.

May 21, 2021

Surplus Funds in Foreclosure Cases – How to Recover?

By Weiss & Weiss

Prior blog posts have discussed the concept of surplus monies in foreclosure proceedings. Surplus funds occur when a property is sold at a public foreclosure auction, and the amount bid exceeds the amount of debt owed on the property. For example, a homeowner defaults on his mortgage, and owes $300,000.00 to his lender. After extensive legal proceedings, the house is sold at public auction, and the winning bid is $400,000.00. There is therefore an “extra” $100,000.00 now available. Does the defaulting homeowner have a right to these surplus funds?

The answer is yes. In general, subject to other liens, the owner of the property which is sold at auction has the right to collect the surplus funds if the house is sold for more than the foreclosing creditor (usually a bank) is owed. How does the former owner of the property go about collecting these funds? We would advise that any homeowner who may be in such a position to engage experienced counsel to represent his interests. The reason is that collecting surplus funds requires knowledge of the Court system and the procedures necessary to allow the funds to be disbursed.

When a property is sold at auction, a Court-appointed Referee is responsible for collecting the funds from the winning bidder, and paying off the creditor who brought the foreclosure action. Once this is done, the Referee will file a report in the appropriate Court, showing an accounting of the sums received from the auction, and the disbursement of same. The report will also show whether there were surplus funds; that is, whether the winning bid exceeded the amount owed to the foreclosing entity. If that is the case, the Referee will deposit the surplus funds with the Department of Finance in the County in which the foreclosure took place.

January 20, 2021

Couples and Partition Actions in New York

By Weiss & Weiss

Our firm receives numerous inquiries from couples who co-own property, although they have never married. Many couples, whether they be man and woman or single sex couples, either delay getting married or do not get married at all, even if they have children together. Although such couples may say that “it makes no difference” and that a marriage license is “just a piece of paper,” legally, it can make a great difference when an unmarried couple co-owns real estate.

If a legally married couple owns real estate together, any real estate they own jointly is generally considered marital property, and, if they decide to get divorced, the issue of the disposition of the property in question is resolved as part of an overall divorce settlement. If the couple cannot agree whether to sell the property, then the divorce action may go to trial, with a Judge making the decision after hearing the facts in Court.

However, when an unmarried couple purchases real estate together, and decide to split up as a couple, it raises significant legal issues which may require a partition action to resolve. A partition action is brought when two or more people co-own real estate, and no longer wish to co-own the real estate together. This can also apply to cooperative apartments, which are considered ownership of shares in a cooperative corporation, but which can also be the subject of a partition action.

October 8, 2020

Division of the Proceeds in a Partition Action in New York

By Weiss & Weiss

Our firm often handles partition matters where two or more people co-own a property. Under New York law, no one is forced to co-own property if they do not want to. As a result, a partition action may be brought to have the property sold by the Court and the proceeds fairly divided between the co-owners.

Most, if not all, of partition actions are settled without actually having a Court-ordered sale of the property. Usually the parties reach an agreement to either sell the property to a third party or arrange to have one of the parties buy the other’s interest in the property.

However, the question usually arises regarding what may be a fair division of the proceeds in the resolution of a partition case. This post will explore the various factors which may arise in such a situation.

September 23, 2020

Foreclosures – Judicial and Non-Judicial

By Weiss & Weiss

Some of our prior blog posts have dealt with foreclosure actions concerning real property. A recent New York Supreme Court case, however, deals with a different type of foreclosure, and the effects of the COVID-19 pandemic on the same.

Most foreclosure cases in New York State are of the judicial type, and deal with the foreclosure of real property. In a judicial foreclosure, the owner of real property gives a mortgage and note to a lender, in exchange for a loan. The real property is collateral for the loan. If the borrower fails to repay the loan, or otherwise defaults on the loan by failing to follow the loan terms, the lender may file a foreclosure action in the appropriate New York State Court, which would be the Supreme Court in the county in which the property is located.

New York State currently has a moratorium, due to the effects of the coronavirus, on judicial foreclosures. Under this Administrative Order, “no auction or sale of property in any residential or commercial matter shall be scheduled to occur prior to October 15, 2020.” However, not every foreclosure case in New York is a judicial foreclosure, requiring a Court proceeding. Non-judicial foreclosures occur most commonly in coop matters. An owner of a cooperative apartment does not own real property, but, rather, shares in the cooperative corporation, which, in turn, owns the real property on which the building is located. As a result, if the shareholder defaults on a share loan, the lender may foreclosure on the shares without Court intervention. The lender can issue notices under the Uniform Commercial Code (UCC), which is integrated into New York law, and have an auction sale under the UCC rules, without going to Court.