New York Real Estate Lawyers Blog

May 30, 2019

Considerations for Buying a Business in New York

We often have inquiries from clients considering the purchase of a business. An experienced attorney should be consulted when commencing this process. Initially, the seller’s attorney will deliver the contract to the buyer’s attorney for negotiation. Should the business being sold be a franchise, the final contract should be conditioned on approval of the franchisor to the buyer conducting business under the franchise name.

After consulting an accountant to confirm that the business to be purchased is financially viable for the buyer’s future income needs, the financial terms of the deal are to be structured. There may be a broker who has negotiated the initial terms, which may be modified during the contract negotiation process. Usually the payments required of the buyer are the delivery of the downpayment to the seller’s attorney to be held in escrow until closing and another payment at closing. The payment at closing may be the last payment to be made or the buyer may sign a promissory note for subsequent payments to be made after the purchase.

Particular protections need to be in place on behalf of the buyer. A lien search should be obtained prior to closing, so that the seller obtains lien releases for equipment and tax matters that may have an effect on the buyer. For example, if a freezer is to be conveyed and the seller has a business loan on such equipment, a UCC Financing Statement is likely to be filed evidencing the loan. If the loan is not paid at the closing and the UCC remains, the buyer is acquiring the freezer subject to the seller’s loan and will not own it outright.

May 23, 2019

How Will I Know? Appropriate Duties for New York Executors

By Weiss & Weiss

Our readers may be aware of the business activities recently announced by the Executor of the Estate of deceased pop icon Whitney Houston. After having rejected prior business opportunities, the Executor has decided to enter an arrangement with a music and marketing company to have a touring hologram of Ms. Houston’s image, a possible Broadway musical, branding deals, and issue an album of unreleased music tracks. This activity gives rise to the question; “[h]ow will I know” if promoting business activity is legally proper for an executor in New York? We suggest that you “don’t trust your feelings” and that you consult an experienced attorney who “know[s] about these things”.

By way of background, if a person dies with a Will, the Surrogate’s Court appoints the executor named in the Will. The deceased, in “racing with destiny” has “laid the plans” and named her chosen executor in the Will. The executor’s role is to collect and preserve assets, determine and pay just debts and distribute funds remaining after these activities to the beneficiaries named in the Will. When drafting a Will , your attorney will include a “powers clause” for the executor. It could be an extensive list of activities that the executor may conduct, such as making investments, selling property, borrowing money, employing professionals such as accountants and attorneys , making tax elections and the like. In the alternative, the powers clause may instead be general in nature, such as the full power and authority in all matters as if the deceased is still living. Of course, the executor is forbidden from self-dealing and transferring assets for the benefit of anyone besides estate beneficiaries.

The activities of Whitney Houston’s executor could be evaluated in multiple ways. As reported in the news story, she is pursuing new business opportunities rather than winding down the estate, distributing the assets to the beneficiaries and closing the estate. On the other hand, it may be considered wrong in the Houston estate matter if an executor declines business opportunities that could be lucrative for the beneficiaries and enlarge estate assets. Certainly, the Houston Estate matter provides an executor unique opportunities to generate additional estate income. However, most people are not famous. It is unlikely that the typical executor can legitimately promote additional business activities for reasons besides increasing his own commission. The executor does personally benefit by increasing potential executor commissions that can be collected, as such commissions are calculated based upon the value of the estate. We would recommend that the executor confer with the beneficiaries to determine if they would rather have the estate maximize its future assets or if they would prefer to have the estate distribute and close without delay. Although such a discussion is not legally required, it could prevent the beneficiaries from making a claim against the executor for delay in closing the estate if they all agree that such business activity be conducted.

May 16, 2019

Has Your Lease Expired? Holdover Proceedings in New York State

By Weiss & Weiss

Prior blog posts have discussed the difference between the two types of landlord-tenant eviction proceedings. To summarize, non-payment proceedings occur when a tenant fails to pay rent or other charges due to the landlord. Holdover proceedings, which will be discussed in this post, happen when a tenant’s lease term has expired, or, in certain situations, when a tenant does not have a written lease.

First, let’s discuss situations when a tenant’s lease term has expired. Most, if not all, written leases, contain a specific lease term. It may be expressed in terms of a set period, such as one year, and can also give the specific date that the lease will expire. What happens when the lease term expires, but the tenant remains in possession? Under New York law, the tenant now becomes a month-to-month tenant. This means that the lease terms remain in effect, but the lease has been extended for an additional monthly period, assuming that the tenant continues to pay the rent due, and continues to comply with the other lease terms.

By accepting the rent for an additional month, the landlord is agreeing to an extension of the lease for that additional month. Let’s say the lease expires on March 31. On April 1, the tenant pays an additional month’s rent check to his landlord, and the landlord accepts the rent, by depositing the check. Under the law, the parties now have a month-to-month tenancy, which either party can terminate on thirty day’s notice.

May 3, 2019

Renting to Own in New York

By Weiss & Weiss

There are many opinions regarding whether being a renter or owner of one’s residence is the correct decision in New York. Many factors, including one’s economic situation, must be considered in whether to rent or buy real property. One additional possibility is renting the property with an option to buy. This post will discuss the legal issues related in entering into such an agreement.

Initially, there must be an agreement with the owner of the property regarding the terms of the rental. This is commonly documented in the form of a lease. The lease will delineate the monthly rental amount as well as the lease term and other provisions. If the parties agree, an option to buy the property can be included in the lease, or as a separate agreement.

The most common arrangement is to provide the renter with the option to purchase the premises at a set price during the rental term, or at the expiration of the rental term. If the renter exercises her option to buy, then the attorney for the property owner should prepare a contract of sale to be executed by all parties. The signed contract of sale is necessary should the potential purchaser need to apply for a mortgage loan to purchase the premises. Any institutional lender will need a copy of the fully executed sale contract in order to process a standard loan application. In addition, a down payment, typically in the amount of ten percent (10%) of the purchase price is usually also necessary to obtain a traditional bank loan. The lending institution requires proof of the down payment deposit into the escrow account of the seller’s attorney.

April 26, 2019

Flip or Flop: New York Edition

By Weiss & Weiss

Many of our readers are familiar with television programs where people purchase properties in terrible condition, conduct renovations and then sell at a handsome price at the end of the show. While some New Yorkers may be inspired by these programs, reality often differs from the outcome as depicted on television. This post will examine some of the pitfalls in “flip” transactions and methods to alleviate some of the legal issues that arise.

Traditionally, a flip transaction takes place as follows. A purchaser locates a property that is a “good deal”. Perhaps it is purchased at foreclosure auction , without the opportunity to view the interior of the property or to determine whether tenants occupy the property. The property is a “good deal” because it is priced below other properties in the area, and is perceived by the purchaser as being in a prosperous area in which their ultimate purchaser will want to live. Once the property is purchased, the owner will renovate the property and market it for sale. The flipping purchaser does not intend to use the property for his own occupancy and therefore needs to sell the property as quickly as reasonable.

As most flippers ultimately realize, there is no such thing as a “good deal”. These transactions are often too good to be true, as these properties are acquired “warts and all”. Often the flip properties are acquired from foreclosing lenders whose attorneys present contracts that are allegedly nonnegotiable, “need” to be signed immediately and contain unduly harsh closing deadlines that could result in the loss of the downpayment or other penalties. Flippers should not cave to pressure to sign such contracts without attorney review. An experienced attorney will inform flippers that they are most likely purchasing the property subject to existing property violations, past due real estate taxes, unpaid water bills, another mortgage that may not have been removed by the foreclosure proceeding, occupants that may need to be evicted and the like. It may be prudent to order a title search prior to signing such a contract and to resist pressure from the seller to use the title company that it recommends.

April 18, 2019

Happy Passover and Happy Easter from Weiss & Weiss

By Weiss & Weiss

April 15, 2019

Fancy a ‘Cuppa? New York Commercial Lease Modifications

By Weiss & Weiss

The New York Times recently published an article concerning the beloved business Tea & Sympathy, a British-themed store and restaurant located in Manhattan’s Greenwich Village, and the difficulty that it has encountered meeting its lease obligations. Closure of this business may occur unless the landlord is willing to amend the lease terms. Loyal customers of Tea & Sympathy have rallied in support of the business by contributing to a “Go Fund Me” page to assist the business in meeting its expenses. This post will examine legal strategies to be employed when a tenant foresees difficulty in meeting its lease obligations.

Some of our clients with commercial leases have contacted us when they have encountered difficulty in meeting their lease obligations. The cause of such inability can arise from various factors. Perhaps the tenant did not engage the services of an experienced attorney when the lease was negotiated and inadvertently agreed to terms that were not advisable for a tenant. Unanticipated factors may have come into play that increased tenant obligations beyond those that may be comfortable, such as increased fees and real estate tax escalations of the municipality where the leased premises is located, or a major capital improvement conducted by the landlord for which the tenant agreed to pay a percentage of the cost. Although the tenant agreed to the rent increases when the lease was signed, the tenant may have eventually become unable to sustain the rent increases once other business expenses also increased. The business climate may have changed since the lease was signed. For instance, the product or service offered by the tenant may also no longer be desired or is now being offered online at a lower price. Given that most commercial leases are long-term arrangements, many of these factors can cause a tenant to be unable to meet its lease obligations.

Your attorney should first determine whether the tenant wishes to continue to conduct business at the leased premises. If not, a lease surrender should be negotiated prior to “going dark”. Should the tenant wish to continue at the premises and even be fortunate enough to have sympathetic customers (like those of Tea & Sympathy) who would be disappointed if the business closes, attorneys for the tenant should conduct a negotiation with the landlord towards the goal of modifying the lease so that the current terms are consistent with the tenant’s current abilities and the landlord’s current needs to cover property expenses. Negotiation of a lease modification avoids yet another vacancy for the landlord and maintains the landlord’s cash flow.

April 4, 2019

Return of the Rogue Rabbi – Elections and New York Religious Corporation Law

By Weiss & Weiss

Recently in the news is a follow-up story relating to a dispute regarding control over a Chelsea synagogue. A prior blog post related the original story about a “rogue Rabbi” who took control of the synagogue pursuant to a lease agreement, and was accused of violating the lease by, among other things, tearing out original pews, renting the synagogue out for parties, and other alleged wrongful conduct. That dispute is still being litigated.

The new dispute relates to a recent election held by the synagogue to elect a new Board of Trustees. Certain members have disputed the validity of the election, and have filed suit to reverse the results of the election. As our prior blog posts have explained, such disputes are usually governed by the New York Religious Corporation Law. The law governs all religious institutions, including the so-called “major” religions, Christianity, Judaism, Islam, and Hindu.

However, New York Religious Corporation Law only provides general guidelines regarding many of the issues which may arise over a disputed election. One potential issue is which individuals qualify as members of the congregation, and, therefore, would be allowed to vote in an election. Congregants or members are usually defined under the law as those who are over 18 years old, and who worship regularly at the institution in question. Certain churches may define congregants as those who receive communion regularly at the church. Contributing funds to the institution on a regular basis may also be a factor in membership qualification. Our firm recommends that the institution’s by-laws be drafted to include a more specific description of membership qualification. Institutions are free to define membership in their by-laws, and such by-laws will be upheld by the Courts. For example, the institution may define regular attendance at services as a qualification for membership, or may limit membership to dues-paying individuals, or to individuals who have contributed a certain level of funding. Specifically defining membership is important for any religious institution, as participants in elections are limited to only members of the congregation. Qualified members may then vote in elections to determine the leadership of the organization.

March 28, 2019

Mortgaging the Church’s Future?

By Weiss & Weiss

A recent New York Supreme Court decision relates to the intersection of two major practice areas of our firm, foreclosure and Religious Corporation law. The case involved a mortgage loan taken out by Grace Christian Church, located in Brooklyn, New York. According to the Court, the Church mortgaged its property to the plaintiff, John T. Walsh Enterprises, LLC, in exchange for a loan of $350,000.00. When it failed to make payments under the terms of the note, the plaintiff brought a foreclosure action against the Church property.

This case is an excellent example of the interaction between these two areas of law. The reason for this is that, under New York’s Religious Corporation Law, a religious corporation cannot sell, mortgage, or lease its property for a term exceeding five years without the consent of the New York Attorney General. Prior blog posts have discussed the legal procedures necessary for a religious institution to obtain such consent. Recent changes in the law have made it possible to obtain such permission directly from the office of the Attorney General, without the necessity of a Court proceeding. However, if the Attorney General’s Office does not give initial consent, the religious institution then has the option of bringing an action in Supreme Court to obtain such consent. Such action must be served upon the Attorney General’s Office, and, if the Court subsequently approves the transaction, whether it be a sale, lease, or mortgage, then the religious institution may proceed with its real estate transaction.

In the Grace Christian Church case, although the Church’s Board of Directors approved the loan transaction, they did not seek approval of the New York Attorney General, as the law requires. In addition, the loan terms were significantly altered at the loan closing, without the consent of the Church’s Board of Directors. A title search performed by an experienced title company would have shown that the property was owned by a religious corporation, and would have required such consent by both the Board of Directors as well as the Attorney General as a condition of closing the loan.

March 15, 2019

Varsity Blues? Misrepresentation in New York Real Estate

By Weiss & Weiss

Many of our readers are aware of the recent college admissions cheating scandal. Credentials of proposed candidates were misrepresented in an effort to obtain admission to prestigious colleges. Parties to real estate transactions in New York may also misrepresent financial qualifications and property conditions in an effort to close the sale of a property. This post will address the types of misrepresentations that may occur in real estate transactions and the remedies if such misrepresentation is discovered.

From the prospective of a purchaser, misrepresentation can take the following forms. It is not unusual for a contract to purchase a house to contain a provision that the purchaser represents that she has adequate funds to close, has not filed bankruptcy during the past seven years, and is not aware of any judgments filed against her. The purpose of this clause is to deter a seller from entering a contract, taking the property off the market and later discovering that the purchaser cannot obtain cooperative board approval or obtain a loan commitment due to facts that the purchaser knew at the outset of the transaction.

Purchasers also are often required to represent that a loan application will be pursued with diligence. A purchaser may falsely elevate financial details on his mortgage application in an effort to qualify for a mortgage for which he is not otherwise qualified. Lenders protect themselves as to this potential form of misrepresentation by requiring proposed borrowers (and applicants for short sale approval) to deliver a signed IRS form 4506-T. This document allows the lender to obtain tax returns directly from the IRS, in case the borrower falsified tax returns delivered to the lender in an effort to look more favorable as a borrower. In addition, lenders typically contact the borrower’s employer immediately before the closing to confirm continued employment and salary awarded. Cooperative applications commonly contain personal and business letters of reference. Due diligence may dictate that the authors of such letters be contacted to confirm that they did indeed write and submit such letters as part of the board application.