thanks2016The 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.

forehomeFrom 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.

airbnbNew 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.

cashierPrior 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.

reliestphotoMany of our readers are about to celebrate Rosh Hashanah.  We wish those who observe a happy and healthy new year.  At this time of year, those of the Jewish faith tend to reflect upon their acts during the past year and to set goals for improvements in the following year.  Attorneys can provide the opportunity for one’s religious, moral and ethical values to be reflected in a final legacy, such as a Will or Trust.   This post will discuss the means by which your attorney will insure that your values are properly contained within your estate documents.

Primarily, we suggest that you meet with a skilled professional , who is prepared to discuss your ethical values.  The meeting should not only address the standard discussion of who should serve as fiduciaries (those named in the Will to act on behalf of the estate such as executors, trustees and guardians) and who should inherit your assets.  For instance, a couple with minor children typically needs to determine who will serve as guardians to raise their children if they pass away.  If religion is important to such a couple, they may want to appoint someone of the same religious background who will be instructed to continue the religious instruction and ritual observance to which the children have been accustomed.  It is possible that a separate fiduciary may need to be named to handle financial matters for the children when a religiously sensitive guardian has been selected.

Discussions should be undertaken as to the distribution of assets.  Authorizing a trust to distribute assets for religious education and travel, in addition to the standard education expenses, may be appropriate.  Charitable matters should also be considered.  If charitable giving is an important value to the client, we discuss the means by which charitable giving can be accomplished.  Gifts made during lifetime typically have less significant tax consequences and the donor may be recognized personally for the contribution.  However, the donor may need the assets during her lifetime and would rather part with them at a later time.  Charitable trusts can also be established if appropriate.  Our firm commonly coordinates with various organizations that are prepared to assist in the establishment of such charitable trusts.

property-dividedOur firm is often consulted in situations where a number of individuals have inherited real property.  For example, a parent passes away, and leaves a house to her three children. Many legal issues can arise from this type of situation, which will be discussed in this blog post.

The first question when a property owner dies is whether they have a written will.  If they do, then their Last Will and Testament should direct the disposition of the said property.  For example, the Will may state “I leave my property located at (address) to my three children (names of children).  Another possibility is that the property is not specifically addressed, but the testator (the person making the Will), simply leaves all of their property owned at time of death jointly to their children.

If the person dies without a Will (intestate), then the disposition of their property, including any real property, is made pursuant to New York Estate Law. For example, if a person passes away without a Will, and has no living spouse or parents, then their property would be inherited by her living children.

interviewAfter a long search, you have finally located your dream apartment.  In New York, such an apartment is likely to be a cooperative apartment.  You have been fortunate enough to obtain your loan commitment.  Are you ready to close?  No, because you now need approval for your purchase from the board of the cooperative.  Such a condition is contained in the form contract for cooperative purchases.  This post will discuss what is entailed in obtaining cooperative board approval.

The contract will specify a timeframe for the submission of your board application package.  Your attorney should monitor this deadline, along with other deadlines to confirm that you have made the submission within the proper timeframe.  It is preferable to work with a professional real estate agent who is familiar with the building or its managing agent, so that the board package is prepared in a manner pleasing to the board.  Typical items for submission include financial records such as bank statements, and personal and professional letters of reference, along with the completed board application and credit check authorization.  Each building specifies the number of copies required to be submitted.  Most buildings will require that the application not be submitted unless it is also accompanied by a loan commitment letter from your lender.

The managing agent will review the application with the building’s interview committee (usually a smaller portion of the board).  If such application on its face is not acceptable to the board (usually for financial reasons), they will decline to interview the candidate.  This is a wise move, so that the board is not accused of discrimination in the event that the applicant happens to be a member of a protected class, which is not discoverable unless the applicant is met face-to-face.  Otherwise, the board will schedule the interview.  Potentially during the summer months or holiday season, meetings may occur more sporatically.

foreclosuresignPrior blog posts have discussed a “short sale” of a property in foreclosure.  A short sale is when the house is worth less than the mortgage owed to the lending institution, and the lender agrees to accept less than the full amount owed when the transaction takes place.  However,  a situation may also arise when a house is worth more than the loan balance, or when the amount owed is small enough that the seller may decide to pay the difference in order to sell the property to a third party.  This post will discuss legal issues related to these circumstances.

Many of our firm’s intend to sell their houses or other property in foreclosure.  They have listed their properties with a real estate agent, and are confident that the selling price will exceed the amounts owed on the property’s mortgage.  In that case, the first legal recommendation is to have an attorney file an answer to the foreclosure complaint in the appropriate court, including all legal defenses .  This will allow the homeowner additional time in which to find a buyer for the property while the foreclosure process plays out in Court.  Mandatory settlement conferences for foreclosure actions may also further delay a lender’s obtaining of a judgment of foreclosure and sale, allowing more time to market and sell the property.

Once a buyer is procured, it is important that the seller’s attorney immediately prepare a Contract of Sale.  Assuming all parties then execute the contract, the buyer’s downpayment should then be deposited in the attorney’s escrow account.  The next step would be for the seller’s attorney to contact the attorneys handling the foreclosure for the lending institution.  The attorney should provide copies of the fully signed contract, together with proof of the downpayment deposit.  At this point, the attorneys for the lender may agree (although legally, they are not obligated) to put a “hold” on any foreclosure litigation, pending the closing of the sale of the property.  The reason for this is that at the closing, the lender will be paid in full.  Therefore, it is usually not cost effective for a lender to continue to pursue a judgment of foreclosure in Court once there is a signed contract and downpayment.