New York Real Estate Lawyers Blog

October 19, 2017

Religious Corporation Law – Who Reigns?

A recently reported case in New York State Supreme Court (Nassau County) addresses issues covered in prior blog posts as they relate to the New York Religious Corporation Law. Kelley v. Garuda (Index No. 7016/2004) is a case involving a dispute regarding the International Society for Kirshna Consciousness and a temple located in Freeport, New York.

The International Society for Krishna Consciousness is known by the acronym “ISKCON”. In this case, the Krishna temple had been “taken over” by certain individuals who were espousing a religious doctrine contrary to that being promulgated by ISKCON. They were running the Temple and were not being answerable to ISKCON, who claimed the authority to own and run the temple in question.

This dispute left the Court with a tricky legal situation. The First Amendment to the United States Constitution states, in pertinent part, that Congress shall “make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This puts Courts in a difficult position when a dispute arises within a religious institution. As in the ISKCON case, our firm has handled many cases in which there may be conflicts between different factions in a religious institution. These cases may involve any religion. The question then arises whether a Court can get involved in deciding such disputes without running afoul of the First Amendment.

October 13, 2017

Property Surveys- Why New Yorkers Need Them

By Weiss & Weiss

Our clients often inquire as to the relevance of surveys in their real estate transactions. This post will discuss what a survey accomplishes and why our attorneys recommend that their purchasing clients obtain one, even if they are not obtaining a loan. In this context, we will be discussing the standard land survey, one that identifies such items as structures, fences and easements.

A survey is prepared by a licensed surveyor who will visit the property under contract with documents provided such as a prior survey, deed and the like. The surveyor will have special instruments that are installed on a tripod, measuring tape and other types of equipment. The goal is to measure and describe precisely the property to be conveyed in the intended transaction. In Westchester County, New York , property deeds are indexed and recorded primarily by previously assigned block and lot numbers with a property description (known as Schedule A) attached to the Deed. Our readers may be familiar with the standard Schedule A language, beginning at the point of x, continuing a particular number of feet to y and ending at z. In order to accurately draft the property description for current conditions, the surveyor needs to visit the property and take measurements of the property lines as exists today. As such, an old property description may potentially be inaccurate. An experienced attorney representing a buyer will want a survey to be done to make sure that the description is accurate on the deed being conveyed.

Surveyors also identify any structure built on or within the property lines. A buyer’s attorney should make sure that any structure is properly permitted, if required by the relevant municipality. For instance, a house should have a certificate of occupancy or a “pre-date” letter confirming that the town did not require such a document when it was built. Is a shed or deck on the property? If so, this may also require a permit in order to be legal. A buyer’s attorney will want to make sure that the seller has obtained any necessary documents for these structures. Surveys give clues that permits may be needed.

October 6, 2017

Tiny Homes = Big Problems?

By Weiss & Weiss

“Tiny homes” have become popular among those who want their possessions pared down to the necessities so that they can save what may be a large mortgage payment on a large home and enjoy experiences such as adventurous travel in its place. We have reported on what we call the clutter reduction program . Limiting excessive possessions has assisted in the development of the tiny homes movement. However, tiny homes are not without big problems. The New York Times recently reported about the difficulty that tiny home owners have in what should be an obvious issue: where are you permitted to place your tiny home? Individuals spend hours upon hours designing such homes, with innovative space saving techniques and environmentally friendly building systems, only to neglect the need to determine the proper legal placement of such tiny home.

Tiny homes, as any other structure, require the legal right to use any particular parcel of land. Perhaps a particular municipality requires that structures be of at least a certain square footage or that lots be of a certain minimum size, in order to discourage the placement of less aesthetically pleasing mobile homes. Zoning laws could be violated. For instance, the zoning for a property location may allow for vacant land or commercial use only and the tiny homeowner will be living there. Likewise, the zoning regulation may allow single family home use only on a lot and a conventional homeowner allowing another residential structure is in effect using the lot for multifamily use. Also, linkage to municipal sewer systems and electrical grids may be desired.

Now that the tiny home owner has decided that acquiring the legal right to land use is required, this author will render advice on the means to such acquisition. Parking your tiny home in a public parking lot is not an answer, as many commercial property owners have posted notices in their parking lots to the effect that no vehicles are permitted during certain hours. Vacant land owners may post no trespassing signs for the same reason.

September 19, 2017

Wishing Our Readers Who Observe a Happy New Year

By Weiss & Weiss

September 14, 2017

Eviction of Family Members in New York

By Weiss & Weiss

Our firm receives many inquiries regarding property disputes among family members. Often, several relatives may inherit property from a deceased relative, and cannot agree on how the property is to be maintained, whether the property should be sold, and who should live at the property.

Prior blog posts have discussed the possibility of a partition action when the owners cannot agree on the disposition of the property. An additional question often raised, in several different contexts, is whether a family member, living at the premises, can be legally evicted. The answer to this question involves delving into the situation in further detail, and is far from simple.

The first question to be asked is whether the person sought to be evicted is an owner of the property, whether through inheritance or other type of transfer. If that family member is a legal owner of the property, the general answer is that person cannot be legally evicted. In general, any owner of a property, even a partial owner, has a right to reside at the premises. Let’s assume two brothers inherit a house from their parents. Both brothers now own 50% of the house, and both have a legal right to reside at the house without paying rent to the other. However, they are both legally obligated to equally share the costs of the upkeep of the house, such as routine maintenance and real estate taxes. Neither would have the legal right to bring an eviction action against the other. The situation could be resolved by one of the brothers buying the other’s interest, or selling the property to a third party, and splitting the net proceeds.

September 7, 2017

Who’s the Dictator?

By Weiss & Weiss

The New York Post recently reported a news story wherein a condominium property manager “decorated” the common areas of the building with Nazi and other historic propaganda relating to dictators. Residents of the building felt threatened and intimidated by other activities of the property manager, including alleged physical threats. This story is an exaggerated version of many tales told by clients of this firm . In this post, we will discuss suggestions for managing abusive employees of cooperative and condominium buildings as well as hostile environments created by certain board members.

The cooperative or condominium building is legally responsible for the acts of its employees. The exception to this rule is criminal activity, with which the perpetrator bears responsibility. If an employee is abusive to unit owners or denying services to particular shareholders, the board has an obligation to discipline or remove the offending employee. Boards should consult with a qualified attorney in the event that the employee is a union member in order to strategically handle the employment situation, so that the building is not subject to a grievance filed with the union.

If the board is not responsive to shareholder complaints, it may be appropriate to seek an election to replace current board members with those more in keeping with unit owner sentiment. First, one should request that an experienced attorney review the governing documents to determine how to legally hold a special or general election to replace the board. Then, all procedures outlined in the governing documents should be followed so that the election is not subject to being overturned. Hopefully, this will result in a new board being installed that will manage the offending situation by suitable means.

September 1, 2017

Happy Labor Day from Weiss & Weiss

By Weiss & Weiss

August 25, 2017

Divorce and Foreclosure – What are Your Rights?

By Weiss & Weiss

Financial troubles can be the cause of much stress for married couples. Often, these stresses lead to a couple separating, and ultimately, divorcing. In such situations, there will always almost be issues regarding the marital residence, be it a house or an apartment. Due to the financial issues, the property may already be in foreclosure. This blog post will explore the legal issues relating to married couples who own property which may be in foreclosure, and the issues that arise if a divorce proceeding occurs.

The first assumption is that the property in question is owned by both parties. The legal term for such ownership is tenants by the entirety. This means that the property is jointly owned by a married couple, and if either party passes away, their ownership share automatically passes to the surviving spouse. It should be noted that tenants by the entirety only applies to married couples. Once a divorce is finalized, the ownership interest changes to tenants in common, which means that the interest does not automatically transfer upon death to the survivor, but remains as part of the estate of the deceased.

Of course, when the parties are divorcing, the ownership of the martial residence is usually a major issue. If the property is in foreclosure, or is likely to become the subject of a foreclosure case in the near future, such issues must be addressed as part of the divorce proceedings. There are several possibilities in this situation. First, if there is equity in the property, and neither party wants to remain in the marital residence, the property may be sold, with the couple sharing the proceeds as per their divorce agreement. In the course of such a sale, any outstanding mortgage would be paid off, and any foreclosure proceedings would be discontinued as a result of such a sale. This is probably the easiest solution, although not always possible.

August 9, 2017

An Update on Reverse Mortgages

By Weiss & Weiss

A recent New York Times article concerns possible changes to the enforcement of reverse mortgages against surviving spouses. To those unfamiliar with reverse mortgages, they are a type of mortgage loan which allows elderly borrowers (usually over 62 years old) with sufficient equity in their primary residences to borrow against that equity. Generally, the sums borrowed do not have to be repaid until after the death of the borrower. Therefore, the heirs of the borrower, after their death, have the option of repaying the sums due, or selling the property and then paying off the amount of the reverse mortgage, plus any interest accrued.

Other blog posts have discussed the possible pitfalls of reverse mortgages. The New York Times article concerns a specific problem with many reverse mortgages, that of a surviving spouse. The issue raised is this: what happens when the home is owned only in the name of the borrower, the borrower has a (usually) younger spouse, and then the borrower passes away, leaving an unpaid reverse mortgage? Is the surviving spouse forced to sell the property in order to pay off the reverse mortgage, even though they may have lived there for many years with their spouse?

This situation arises in only a small amount of reverse mortgages. Most couples own property jointly, and may take out a reverse mortgage in both of their names. In this situation, where both borrowers qualify by meeting the age requirement, the mortgage is not due until the last of the borrowers passes away. Therefore, the “surviving spouse” situation does not apply where both borrowers are record owners and borrowers. However, there are situations, often involving a second marriage, where one borrower may qualify by age, and the other “half” is too young and will not qualify as a borrower. Reverse mortgage companies may require that the property be put in the qualifying buyer’s name alone in order to approve and close a reverse mortgage. This creates the situation discussed, where the older borrower then dies and the younger spouse, who may have inherited the property is faced with the reverse mortgage lender demanding payment in full while she does not have the assets to pay the mortgage without selling the property in question.

July 20, 2017

Commercial Properties and Local Regulations – What are Your Rights?

By Weiss & Weiss

News outlets have recently reported a conflict between local business Ralph’s Italian Ices in Mamaroneck and local officials, who are seeking to close the business due to noise and parking issues. While we do not know how this specific situation will resolve itself, many of our firm’s clients are small businesses who may find themselves in similar situations. This post will discuss the legal issues involved when a commercially leased property has issues relating to compliance with local regulations.

A business owner seeking to lease commercial property should first have counsel research the property in question. Issues such as allocation of parking spaces, permitted hours of operation, and legal as-of-right zoning of the proposed location must be thoroughly vetted prior to signing any commercial lease. Zoning is particularly important. If the property being leased is not zoned for the proposed tenant’s use, a special use permit must be obtained from the locality in which the premises are located. A special use permit allows the property to be used for a non-conforming use outside the legal as-of-right zoning.

When such a permit is necessary, the tenant’s attorney should make sure that a contingency clause is inserted in the commercial lease to allow for the obtaining of such a permit. Obtaining such a permit requires a detailed application, formal notification of adjacent property owners of the pending application, and, usually, attendance at a zoning board hearing to explain the situation at a hearing before the town zoning board. Therefore, the lease should contain a clause that the proposed tenant will make a good faith application to the zoning board for a special use permit, and, if such application is rejected, that the tenant would have the option to terminate the lease in question. Otherwise, a tenant may lease a property, and discover that they cannot open their business due to not being in compliance with zoning regulations. A contingency clause allows the tenant to apply for a special use permit without the risk that they may be committed to a long-term lease without the ability to legally operate their business.