Landlord and Tenant

February 10, 2017

Untimely Deaths- The Legal Aspects

The timing of death is never particularly welcome. Some families are prepared, in that the deceased was elderly, maybe ill, and living in a nursing home. Perhaps such a person also had the foresight to have their attorney prepare her Will and other estate documents. Others may pass away at a relatively young age, in the prime of life, with ongoing financial and personal activities. This post will examine the legal ramifications of passing away while a legal matter is pending.

Imagine that the deceased was a party to a contract concerning the sale of a house which has not yet closed. The first step that the survivors would need to undertake is to review the contract and determine if it addresses the potential death of one of the parties before the closing. In most cases, the seller is bound to the terms of the contract through her successors. This means that the survivors cannot decide to nullify the contract and move into the house. However, the seller is not available to conclude the transaction. The attorney for the seller would need to apply to the Surrogate’s Court to apply for Letters Testamentary or Letters of Administration , which appoints the appropriate fiduciary to act for the Estate in order to complete the closing. Should circumstances warrant, it may be prudent to apply for Preliminary Letters Testamentary or Preliminary Letters of Administration, to permit the sale to conclude if it is jeopardized by a continued delay.

If the deceased was the potential purchaser of the house, the contract is likely to allow the purchaser’s survivors to cancel the contract. This is a logical result, as the transaction is inherently dependent upon the purchaser maintaining a job in order to pay the mortgage and other carrying costs of the house. Forcing this transaction to conclusion is a cruel result. In most cases, the downpayment is refundable. However, some contracts only provide that half or none of the downpayment would be refunded. It is advisable to have your attorney negotiate a favorable disposition for the downpayment in this instance when representing a purchaser, even if he is a young person.

February 2, 2017

The Supreme Court and What it Means to New Yorkers

By Weiss & Weiss

Recently, President Donald Trump nominated federal judge Neil Gorsuch to the Supreme Court of the United States. While the U.S. Supreme Court is the highest court in the country, New York’s Supreme Court is not even the top court in New York State.

In New York, the Supreme Court is the name given to the trial court for most cases filed within the state. Any case with an amount in controversy exceeding $25,000.00 may be filed in the Supreme Court. Cases involving lower amounts may be heard in local courts, such as Justice Courts or City Courts. In addition, if a case involves possession of real property, it should be filed in landlord-tenant court, which is usually part of a local court such as District Court, Town and Village Courts, Justice Court, or City Court, depending on where the property in question is located.

Appeals from the Supreme Court are heard in the Appellate Division. Should a litigant want to appeal to the highest court in the state, which is known as the New York Court of Appeals, located in the state capital, Albany. Any case heard by the New York Court of Appeals which involves U.S. constitutional principles may eventually be appealed to the United States Supreme Court and be heard by Judge Gorsuch (if he is confirmed by the United States Senate), as well as the other eight current Supreme Court Justices.

January 26, 2017

Post Foreclosure Rescue Schemes – Be on Alert!

By Weiss & Weiss

Our firm often represents borrowers whose homes may be the subject of a foreclosure action. While we attempt to resolve all such cases with the lending institutions, sometimes a foreclosure judgment and sale cannot be avoided, or has already occurred by the time the borrower seeks legal counsel. In such situations, the borrower needs to be on alert for possible “scams,” or individuals seeking to take advantage of a person in distress.

Because foreclosure lawsuits and judgments are a matter of public record, it is easy for unscrupulous individuals or entities to obtain the name and address of the person whose home has been foreclosed and sold at auction. Because most auctions result in the property being sold back to the original lending institution, some people will claim that they have purchased the property from the lender. If the borrower is still living at the property, they will contact the borrower directly or leave a note at the property, requesting that the borrower contact them directly.

We would recommend that if a defendant receives such communications, that they contact their attorney immediately. Using legal counsel will enable a person to avoid the high pressure tactics that these individuals may exert on the defaulting borrower, so that their desperation to reclaim the property or continue to live in it is not used to her disadvantage.

December 15, 2016

Tenant Concerns Raised by Trump Tower Security

By Weiss & Weiss

As a result of the recent election of Donald J. Trump to the Presidency, the area around Trump Tower in New York City has been subject to greatly increased security, including closures of streets, as well as guards and other restrictions on pedestrian access to the shopping areas around Trump Tower. Of course, this additional security has had a detrimental effect on businesses located in and around Trump Tower.

What legal recourse do these businesses have regarding their leases? This post will discuss the legal issues related to businesses and their leases in situations when access to their properties may be limited.

New York Courts have interpreted commercial leases to incorporate a warranty of habitability for the premises. The warranty of habitability means that the landlord warrants that the property is fit to be used for its intended purpose. For example, if the ceiling collapses at a store, causing the store to be closed, then the landlord is generally responsible for making the necessary repairs. Should access to a portion of the store be limited by damage caused by a fire, or other such event, the tenant may be entitled to a partial rent abatement until full access is restored.

November 3, 2016

Pitfalls Arising from the Purchase of Foreclosed Properties

By Weiss & Weiss

From time to time, we are approached by a client who says that she is getting a bargain on a real estate purchase of a foreclosed property. Such a property is being sold by the lender or its subsidiary at a price that the client believes to be well below market. The client may wish to flip the property or use it for his own occupancy. It is important at this stage to hire an attorney with an expertise in this area to protect your interests.

Like other properties, foreclosed properties are usually marketed by a real estate broker. However, most accepted offers for foreclosed properties are without some conditions that are favorable to the buyer. It is not unusual for the buyer to be pressured to sign the first draft of the contract immediately, provide proof of funds and a bank check for the downpayment. Once our firm is engaged in such a transaction , we evaluate the contract and negotiate it as appropriate for this type of sale.

Buying a foreclosed property does not afford the purchaser some of the standard contract terms as in a transaction with a seller who lives in the property. For instance, the property is sold “as is”, without representation that the appliances and major building systems are in working order. Contracts for foreclosed properties often contain time of the essence closing dates and may require the buyer to pay all adjustments for real estate taxes as of the time of the essence closing date, even if such date is not the actual closing date. Also, offers are often accepted in a bidding process, without the buyer having the opportunity to go inside the house or have a formal professional inspection performed. A buyer may not even receive keys at the closing, much less go inside prior to closing, in some of the tougher transactions.

October 27, 2016

Airbnb and New York Rentals – Back in the News

By Weiss & Weiss

New York Governor Andrew Cuomo recently signed a bill into law that would impose fines on Airbnb hosts who do not follow local housing laws. For our blog readers who may not be familiar with Airbnb, it is a web-based service that allows property owners and tenants to rent out their properties for a short period of time, often to tourists visiting their home city.

For example, a person with an apartment or home in an area where tourists may visit can list their property on Airbnb, giving a proposed rental price as well as the dates on which the property is available for short-term rental. Anyone responding to the listing may “rent” the property for a short period of time, sometimes just for a few days or less than a week.

Prior blog posts have discussed the legal issues associated with these short-term rentals. These issues generally arise more often in large cities, many of which have strict laws regarding short-term property rentals. For example, many co-ops and condominiums have strict rules regarding sublets, which is what the Airbnb listings constitute. Their governing documents, such as the proprietary lease, house rules, and condominium by-laws, usually restrict the owners from renting their properties for a short term, usually less than a month. In addition, board approval is often required for any sublets in many buildings. The reason for these rules is that most buildings prefer that their units be occupied by their owners, and not by sublessees. An exception to these rules may be where the owner is actually present during the proposed occupancy. It is important to review the rules regarding sublets for any building in which an individual may be considering purchasing a unit, as they will likely prohibit an Airbnb-type short-term rental.

October 20, 2016

Categorizing Eviction Proceeding Actions in New York State

By Weiss & Weiss

Prior blog posts have discussed types of eviction actions in New York State. To summarize, generally, an eviction action is considered a holdover proceeding when a tenant’s lease has expired, and a non-payment action when the tenant has failed to pay rent when due. In the actual practice of landlord-tenant law, the distinction is not always clear, and there may be certain cases which defy such categorization. This post will discuss these situations.

The first aspect to consider is that the Courts that hear landlord-tenant matters in New York are generally courts of limited jurisdiction. These are lower courts, which in New York City are known as the Civil Court of the County in which they are located. For example, an eviction action for a tenant located in Queens would be brought in Civil Court, Queens County (Landlord-Tenant Part). In the suburbs, there are local courts that hear these cases, usually known as Town Courts or Justice Courts. If they are located in a city outside of New York City, they would be known as City Courts. An eviction action in New Rochelle (Westchester County) would be brought in City Court of New Rochelle.

New York State law allows for these lower courts to hear landlord-tenant disputes. However, jurisdiction is usually limited to landlord-tenant cases involving eviction proceedings. If the case does not involve evicting the tenant for proper grounds, the case may be dismissed for lack of jurisdiction.

July 15, 2016

Pot Luck – Smoking Medical Marijuana in Your Apartment

By Weiss & Weiss

A recent news story in Bloomberg News discusses the effects of the legalization of medical marijuana, and its effect on smoking bans in apartments. This blog post will discuss the possible effects of such new legal developments on apartments in the New York City area and its surrounding suburbs.

Although marijuana use for recreational purposes is not yet legal in New York State (although several other states, such as Colorado, have legalized its use for all purposes), it can be used legally in New York for medical purposes. According to the New York State Department of Health’s website, a person with a severe medical condition, such as cancer, HIV, ALS (Lou Gehrig’s disease), Parkinson’s disease, as well as other life-threatening conditions, may be eligible to receive medical marijuana with a prescription from a doctor registered with the Medical Marijuana Program.

Legal issues may arise from the use of medical marijuana, as many rental apartments, cooperatives, and condominium buildings have enacted bans on smoking. Many rental apartments will contain in their leases a ban on smoking within the apartment and in the building common areas. In addition, many cooperative buildings have also started to ban all smoking, even within the individual unit owner’s apartment. These smoking bans were discussed in a prior blog post. Of course, prior to the legalization of medical marijuana, these smoking bans would have also applied to smoking marijuana (or any other smokable substance) in an apartment. The use of an illegal drug within a rental unit may have also likely given a landlord cause to evict the tenant for illegal activity in their apartment.

June 23, 2016

House Rentals and their Effect on House Sales in New York

By Weiss & Weiss

Recent posts on this blog have discussed legal issues relating to house rentals in New York. Many of our clients have second houses, vacation homes, or multiple properties which they rent to tenants. This post will discuss legal issues that arise when an owner seeks to sell a property that is currently being rented to a tenant.

The first issue which may arise relates to access to the property in question for potential buyers. We advise that any house lease contain a clause that allows the landlord (and their agents) reasonable access to the property to show it to possible buyers. This will allow the property to be shown to third parties during the tenancy in question. Another issue that will arise is ensuring that the tenant keep the property in good repair. Again, the lease with the tenant should contain a clause relating to the tenant’s obligations in maintaining the property. This may include using the same vendors which the owner/landlord currently uses. We also advise that an experienced attorney draft specific provisions relating to the tenant’s obligations concerning the conditions of the house, such as the vendors to be used for outside maintenance, roof and gutters, and repairs to appliances.

Of course, the tenant should be advised by the landlord that the property may be sold. Some leases may contain clauses allowing the tenant to purchase the property, either at a set price or “at a price to be agreed to between the parties.” The problem with the latter clause is that if the parties cannot agree on a price, then there will be no purchase. We would advise using a specific amount in any such purchase option clause, but also having a specific date by which the tenant must exercise their option to purchase. Then, if the option is not exercised, it will lapse and be of no further effect.

May 13, 2016

New York State Landlord Prosecuted – Does this Sound Familiar?

By Weiss & Weiss

Recently in the news is the story regarding New York City landlord Steve Croman. Mr. Croman was arrested for allegedly harassing rent-stabilized tenants into leaving their apartments so that he could increase the rent for new tenants. Longtime readers of our blog will recall other posts which relate to the right to renew a lease, as well as illegal acts and evictions in New York State.

Unfortunately, the current rent system in New York State, and, more specifically, mostly in New York City, gives landlords an incentive to remove tenants, especially long-time tenants, who are paying artificially low rents due to the rent stabilization laws. Of course, this does not excuse harassing and threatening tenants, but it explains why a landlord may resort to these tactics to attempt to remove tenants.

The current rent stabilization system allows the landlord to increase the rent by a certain percentage when a tenant vacates. Although this percentage may vary, it is usually a twenty percent (20%) increase over the prior regulated rent. For example, if a tenant was paying $1,000.00 per month, and vacates, the new tenant may be charged $1,200.00. There may also be additional increases depending on the amount of time which has passed since the last vacancy, as well as increases if the landlord renovates the apartment in question. For buildings that contain more than 35 apartments, the landlord may collect a permanent rent increase equal to 1/60^th of the cost of the apartment improvement. If there are fewer than 35 apartments, the landlord may collect an increase of 1/40^th of the cost.