New York Real Estate Lawyers Blog

January 26, 2017

Post Foreclosure Rescue Schemes – Be on Alert!

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.

January 19, 2017

The Peaceful Transfer of Power

By Weiss & Weiss

One of the hallmarks of our country’s democracy is the peaceful transfer of power that will occur tomorrow. Americans recently endured a polarizing election process. Republicans will now hold the office of the Presidency instead of the Democrats. Nonetheless, the forty-fifth President of the United States is expected to take the oath of office by peaceful transition. This administrative transition occurs no more than every four years on the national level. However, in the New York metropolitan area, such an administrative change happens much more often. This author is reminded of the transitions that occur when a new board is elected to run a cooperative or condominium building.

Contested elections for cooperative or condominium boards can become just as divisive as our country’s elections. Perhaps unit owners feel that the existing board is out of touch with the current needs of the building. Shareholders may disagree as to the prudence of agreeing to sell the building’s air rights or as to the extravagance of a lobby renovation. Boards can also turn over when long-term board members sell and are replaced by much younger board members who may not follow the way in which matters have been handled in the building.

The harmonious tenor of the building may start to unravel once unit owners start to share their concerns about the board online and find that other unit owners agree with them. Then, a successful takeover of the board may result. Even though a new board may be in place, certain steps should be undertaken to ensure a peaceful transition.

January 13, 2017

It Ain’t Over ’til it’s Over – Stopping Foreclosure Judgments and Sales

By Weiss & Weiss

Our firm is occasionally consulted by a party against whom a judgment of foreclosure has been entered. Prior blog posts have discussed the foreclosure process in detail. Among the last actions to be taken in a foreclosure case are the issuance of a judgment of foreclosure and the actual foreclosure sale. This post will discuss the few options available to a foreclosure defendant at this point.

The issuance of a judgment in foreclosure by the Supreme Court of the County in which the property is located usually occurs at two points in the foreclosure litigation. The first point would be if the defendant fails to answer the initial foreclosure Summons and Complaint, and the lending institution is granted a judgment by default. If the default was inadvertent, and the defendant has a reasonable excuse for not answering, as well as a meritorious defense, it is possible for the defendant’s attorneys to file a motion to vacate the default judgment.

Another point in the litigation allowing for a foreclosure judgment would be when the plaintiff moves for summary judgment and the motion is granted by the Court. Once a final judgment is submitted to the Court and signed by the Judge, the foreclosure process is in its final stages. The plaintiff must advertise a public foreclosure sale in a local newspaper for four weeks prior to the sale, and then conduct the sale, usually at the Supreme Court Courthouse in the county in which the property is located.

January 5, 2017

May The Force Be With You: Dying of a Broken Heart

By Weiss & Weiss

Movie fans recently learned of the deaths of Carrie Fisher and her mother Debbie Reynolds, which occurred within one day of each other. Those with symbiotic relationships, such as spouses married for more than fifty years, sometimes die within a close timeframe from one another. This phenomenon is known as dying of a broken heart. This post will discuss the legal ramifications of deaths occurring within close proximity. This author will assume that the persons are husband and wife.

Spouses can pass away in close succession as a result of a sudden event such as an airplane crash or due to natural causes such as failing health in old age. New York State has adopted its own version of the Uniform Simultaneous Death Act. This statute provides that if two or more persons who are heirs to one another die within one hundred twenty hours of each other, that they are deemed to predecease the other. Their estates would then be treated in accordance with the intestate provisions of New York’s Estate Powers and Trusts Law , with their property eventually being inherited by those individuals surviving them in the order as designated by the statute.

There are exceptions to the simultaneous death statute. Such provisions do not take effect if the result would be that the person’s estate escheats to the state. Escheat means that when there are no surviving relatives who may inherit, the state receives the property. In addition, the beneficiary designations in a person’s life insurance policies or specifications contained in legal documents such as a will or trust take precedence over the statute’s simultaneous death provisions. Your attorney may advise a couple to include “mirror image” clauses in their wills wherein the wife is deemed to survive the husband in the event of deaths occurring within a certain period of time from one another, preferably in the range of sixty to ninety days. There may be estate tax concerns that determine which spouse should “survive” the other. Also, a person may wish to include a provision stating that a particular person should be considered to have predeceased her if she has personal reasons to disinherit a particular person.

December 20, 2016

Happy Holidays from Weiss & Weiss

By Weiss & Weiss

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.

December 8, 2016

Due Diligence and Real Estate Purchases

By Weiss & Weiss

You have found the perfect house, cooperative or condominium apartment after a long search. It has the ideal updated kitchen to show off your culinary skills and a beautiful bathroom that rivals a spa-like retreat. Is there anything that should delay the signing of the contract and procession to closing? Yes, there is. A prudent purchaser needs to conduct the appropriate due diligence to make sure that the property and surrounding neighborhood is financially and physically sound. Otherwise, the purchaser may acquire a property that is a long-term headache and difficult to sell when desired.

First, an inspection should be conducted by a professional engineer when buying a house. Some condominium and cooperative purchasers also find it appropriate to conduct an inspection. For a house, such an inspection may reveal a serious condition, such as a crack in the foundation. In this case, the buyer may want to search for another property. An inspection may also show items that the buyer will want to monitor once she is a homeowner. For instance, if the inspection predicts that the remaining useful life of the roof or the hot water heater is going to be five years, the homeowner may want to budget for such replacement and should not be surprised if these elements need replacement at such time. The inspection may also list items that your attorney may wish to request for inclusion while negotiating your contract. The seller may agree to repair the dishwasher, replace a broken smoke detector and the like prior to closing.

Inspections when purchasing a foreclosed property serve another purpose. Although properties offered for sale after foreclosure are generally strictly “as is”, inspection results that are unsatisfactory to the buyer may allow the buyer to cancel the contract or present the opportunity to ask the seller to remedy a particular condition or offer a price reduction. In any case, the buyer will have knowledge as to the condition and the expectations going forward.

November 22, 2016

Happy Thanksgiving from Weiss & Weiss

By Weiss & Weiss

November 16, 2016

Thanksgiving Preparations

By Weiss & Weiss

The upcoming Thanksgiving holiday requires quite a bit of planning. We are not speaking merely about creating the menu, shopping for the required ingredients and preparing the delicious food. Rather, we wish to call attention to those who will be sharing the holiday with you and the legal issues that may arise.

Our readers should consider those people who will be at the dinner table with them. These people are likely to be relatives, some of whom may be able to inherit your estate from you if you die without a Will. Should this result be inconsistent with your wishes, we suggest that you contact a qualified attorney and arrange for your wishes to be documented in a Will and other associated estate documents. Also, consider the legal issues that arise should you be sharing the holiday with a step-parent. In addition, it may be prudent to think about those from whom you may inherit, such as your parents, to address whether they have made the proper estate plans to legally include you.

Observe the items that are on the Thanksgiving table and throughout the home. Is the valuable sterling silver flatware being used in the celebration? Personal property also needs to be addressed in estate documents and should be safeguarded, so as to prevent it from landing into the wrong hands. Should a family member’s estate already be in the administration or probate process, you may need to be prepared to sort through family items and manage who should take such items with them. Perhaps you may want to encourage your relatives to part with some of their valuable personal property now, so as to potentially save on gift and estate taxes at a later time.

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.