Real Estate Litigation

February 26, 2021

COVID-19 Eviction Moratoriums – Legal or Not?

As readers of this blog may be aware, there is currently a moratorium on eviction cases in New York State. This means that, with certain exceptions, new eviction cases cases cannot be filed with the appropriate Court, and cases which have already been commenced have been “stayed.” Legally, a case which has been stayed cannot progress towards a resolution, such as a Judgment and Warrant of Eviction, while the stay remains in effect. In addition, if a Court has already issued a Warrant of Eviction prior to the stay being in effect, the Marshal or Sheriff will generally not proceed with the actual removal of the tenant, unless certain exceptions apply.

Currently, there are two eviction stays in effect, one from New York State, and the other from the federal government. These stays will be discussed further in this article.

The eviction stay in New York State is currently in effect until May 1, 2021. However, there are several legal challenges to this stay. The first involves the current scandal involving the Governor relating to the concealment of the exact figure of New York State nursing home deaths due to COVID-19. As a result of this, and other controversies involving the Governor, there have been discussions of removing his emergency powers, which were granted to him due to the pandemic. The executive orders staying New York State evictions were issued by Mr. Cuomo under these emergency powers. If he his stripped of these powers, he will not have the necessary authority to extend the New York State moratorium when it expires on May 1. As a result, evictions and eviction cases may resume at that time, unless the state legislature decides to pass emergency legislation extending the moratorium.

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.

December 18, 2020

Foreclosure Actions and COVID – An Update

By Weiss & Weiss

Regular readers of this blog have been able to get information on how the COVID-19 pandemic has affected foreclosure actions in New York. This post will serve as an update on current conditions in New York Courts.

At the beginning of the pandemic, New York Courts closed for all matters, including foreclosure cases. In addition, executive orders from Governor Cuomo stayed all foreclosure cases from proceeding. This meant that, at that time, no new foreclosure cases could be filed, and all foreclosure cases previously filed would not be allowed to proceed until allowed by New York State.

This obviously was a benefit to any party subject to a foreclosure action. Even if the Court had, before the pandemic, granted a judgment of foreclosure and sale, the actual sale was not allowed to proceed. In addition, both New York State and the federal government imposed further legal restrictions on all evictions. This meant that even if the foreclosure sale had occurred prior to the “freezing” of all foreclosure cases, the new owner, whether it was the original lender or a successful bidder at a sale, had no legal means of evicting the former owner.

November 18, 2020

Evictions in New York: Legal and Illegal

By Weiss & Weiss

A recent story in the New York Post discusses a lawsuit brought by the City of New York against a prominent couple who are the owners and landlords of a brownstone located in the Crown Heights neighborhood of Brooklyn. According to the allegations in the lawsuit, the couple sought to evict their tenants without any legal process. In more detail, they are accused of, among other actions, using force and threatening to use force to induce occupants to vacate, removing occupants’ possessions from the Premises, and changing entrance door locks to the Premises without supplying replacement keys to the occupants.

The lawsuit seeks civil penalties for violations of the New York City Unlawful Eviction Law, as well as a permanent injunction prohibiting the owners from engaging in any further attempt at unlawful eviction of tenants and occupants, or any further tenant harassment.

Our firm has consulted with many landlords over the years regarding potential evictions of tenants. One course of action that we would never advise a landlord to do is to attempt to evict the tenant themselves, without the benefit of the legal process. While there are obviously many problem tenants, all tenants in New York State are protected by laws relating to evictions. Any eviction must start by serving the tenants with the initial notices (known as predicate notices) which advise the tenants that an eviction action may be brought in the future, either because the lease has expired, or because the tenant has failed to pay rent due.

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.

August 7, 2020

Types of Ownership and their Effects on Partition Actions

By Weiss & Weiss

Our firm is frequently asked to bring partition actions on behalf of property owners. For those who have not read all of our blog posts, a partition action is brought when a co-owner of property no longer wishes to own the property, and the other co-owner refuses to sell the property or buy the other out of her share. A Court will eventually order the property sold, and the proceeds divided among all of the owners. Our experience is that the parties will usually settle the matter before this occurs, either by agreeing to sell the property to a third party, or by having one of the owners buy the share of the other owner.

There are two common scenarios in partition actions, which have different effects on the action and the specific elements of how it may be resolved. The first situation is when individuals inherit property after the death of a loved one. Usually, the last of two parents passes away, and leaves property, such as a house, to two or more siblings. The siblings now co-own a house, for which they may or may not have a use. One of the siblings may want to live in the house, or may have already been living at the premises as an adult. That person may wish to remain at the property. However, in such a situation, his sibling may have married and moved out the house, and may even live out of New York State. The sibling who has “moved on” has no use for the property, and wants to have it sold so that he may receive a share of the proceeds for his own needs.

The resolution of this situation may be that the sibling remaining at the property will have to purchase the share of the sibling who does not want the house. If the house has been fully paid for, with no mortgage encumbering it, the sibling remaining at the house may be able to obtain a mortgage and use part of the mortgage proceeds to buy out the interest of their sibling. Such a transaction should be conducted by experienced counsel, as title would need to be transferred to the remaining sibling at the same time that the funds are obtained from the mortgage. At that point, the sibling who does not want the house will transfer her interest, and obtain funds to compensate her for her share of the property.

July 23, 2020

An Update on COVID and the Courts in New York

By Weiss & Weiss

At the start of the coronavirus pandemic, all of the Courts in New York State closed for health and safety reasons. Recently, as the numbers of those afflicted in New York continue to decrease, some Courts are reopening. This blog post will discuss the current situation as of the writing of this post, and how this effects certain practice areas covered by our firm.

Foreclosure matters, generally heard in New York State Supreme Court, are still subject to a stay from Governor Cuomo’s executive order. It is possible that the stay may be lifted next month, but, at this point, no foreclosure cases are proceeding in the Courts. This stay also applies to the filing of new foreclosure actions.

Other real estate litigation, such as partition actions, are proceeding, generally as usual. A partition action occurs when a co-owner of real property no longer wishes to co-own the property. Litigation is commenced by the co-owner, which will allow the property to be sold with the proceeds shared between the owners. If an owner does not want to sell, they must agree to purchase the interest of the other owner at a fair price. Courts are accepting new partition actions for filing, and cases are proceeding relatively normally through the Court system. However, due to health concerns, in-person appearances at courthouses are being limited. As a result, many appearances are being made by telephone or video-conferencing. In addition, motions and pleadings can be filed through e-courts, limiting the need for attorneys to physically appear at courthouses. Whether this situation will change in the future, as conditions to continue to improve in New York, is unknown at this point.

June 18, 2020

Who Owns the Temple? Disputes Involving New York State Religious Corporation Law

By Weiss & Weiss

A recent Court decision from the Civil Court of the City of New York (Kings County) involves a dispute regarding possession of real property located in Brooklyn, New York. More importantly, the building which is the subject of the litigation houses a synagogue which also serves as headquarters for the Lubavitch movement, a Chasidic (Jewish Orthodox) sect.

The Court decision is quite lengthy (over 100 pages), which is quite unusual for a landlord-tenant matter. It discusses the history of the dispute, as well as the controlling law. This blog post will summarize the pertinent issues, and how they may apply to similar situations in New York State.

The Agudas Chasidei Chabad of the United States is a religious corporation which was incorporated in 1940 to establish, maintain, and conduct a place of worship in accordance with the Chasidic ritual and mode of worship of the Jewish Orthodox faith. In order to do so, they acquired property located at 770 Eastern Parkway in Brooklyn. The organization later acquired adjacent properties and joined them together to form one building.

May 28, 2020

Thor Getting Hammered? Rent and the Pandemic in New York

By Weiss & Weiss

A recent news story in New York relates to New York Mets right-hander Noah Syndergaard and his lease for a New York City apartment. It appears that the pitcher, nicknamed “Thor”, signed a lease for a penthouse in the Tribeca area of downtown New York City for ten months, starting in March of this year. His rent was $22,500 a month and the $17,000 broker’s commission was to be paid by the tenant. The lease was signed in February, before the coronavirus pandemic shut New York City down a month later. In addition, the hurler then discovered in early March that he would need the dreaded “Tommy John” surgery to replace a ligament in his elbow, and would miss the entire baseball season, which, at that point, was scheduled to begin in late March.

We therefore have a situation where the tenant’s circumstances changed a great deal after he signed the lease. The pandemic shut down much of New York City. Then, because of injury, he probably no longer needed an apartment in New York City, because he will most likely rehabilitate his injury at the Mets training facilities in Florida, and will not need to live in New York City during the upcoming season (which, due to the pandemic, has not even started, and may not happen at all). On top of it all, Major League Baseball has recently proposed a plan to re-start the season with players being forced to accept major cuts in salary, which would limit Snydergaard’s ability to pay the agreed-upon rent.

There are several legal issues raised in this situation. One issue concerns using the media to attempt to obtain publicity for one’s legal conflicts, as the parties have done in the Syndergaard case. Our firm disagrees with litigating through the media, as we believe it is best for the parties to attempt to work out disputes privately, through counsel, rather than by using media outlets to espouse their positions. If negotiations are unsuccessful, then the Court system remains the best avenue for resolving such disputes.

May 6, 2020

New Law Relating to Inheritance of Real Property and Partition Actions

By Weiss & Weiss

A prior blog post discussed inheritance of real property. For example, a parent passes away and leaves a house in equal shares to her three children. The three children are now co-owners of the property. Of course, each co-owner may be in a different life situation. For example, one of the adult children may have been living with the last parent to pass away, and wishes to remain residing at the property indefinitely. The other co-owners may have moved from f the property many years ago, and simply want to sell the property and receive their respective one-third of the net proceeds from the sale. All of the co-owners have certain legal rights, which rights have now been modified by a recent (2019) amendment to existing New York law on partitions and inherited property.

Under the original New York Real Property Actions and Proceedings Law (Article 9), any co-owner of the property who wishes to no longer own the property has an absolute right to petition the Court for a sale of the property. As long as the party can prove that he is the valid owner of a portion of the property, and that the property could not be physically divided between the co-owners, the Court would order a sale of the property, assuming the parties could not work out a resolution to the situation among themselves, or through their counsel.

Therefore, the only way for the parties to avoid a Court-ordered sale and public auction of the property would be to agree to a buyout by the party who wishes to retain the property exclusively, or for all parties to agree to sell the property to an unrelated person and share the proceeds in the same proportion as their ownership interests, without further Court intervention. This is what happens in the majority of partition actions handled by our firm. However, the absolute right to have the property sold led to an abuse of the partition law, resulting in the 2019 amendment. What was occurring was that third parties would purchase a small stake in an inherited property, and then use their newly-acquired ownership share to force an unwanted sale, or use the threat of same to extort above-market settlements from their fellow co-owners. For example, an individual inherits a small share (10%) of a property. They then sell that share to a third party. That third party now threatens a partition sale, is her right, unless she is “bought out” for an amount much larger than her share would be worth on the open market. The co-owners are forced to acquiesce so as to avoid losing the property in a Court-ordered sale.