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Our firm is frequently engaged to handle disputes over property ownership.  In many cases, a partition action is necessary.  This post will explain the essential components of such an action.  The first and most important element is that the dispute be over real property.  Although there can be disputes over personal property, such as possessions and vehicles, a partition action can only concern real property.  Including other types of property in a partition action should be avoided, as it is not covered by the statute in question, and leads to issues not readily resolvable in such an action.

The real property in question must be located in New York State, and also should be owned jointly by the parties.  There are several types of joint ownership in New York.  Married couples often own property as joint tenants with right of survivorship.  This means that if one of the joint owners passes away, their ownership interest immediately passes to the surviving spouse.  However, it is fairly uncommon for a spouse to bring a partition action against the other spouse.  The reason for this is that such disputes between spouses are almost always part of a divorce action, where other assets and liabilities are at issue.  Therefore, the resolution of the dispute is heard in the Matrimonial Part of the Supreme Court, rather than in a partition action.  The Matrimonial Part will usually resolve the dispute over the real property (as well as any other jointly owned property) as part of the divorce case.  In certain rare cases, the real property in dispute is not resolved in the divorce action, and then, a separate partition action may be necessary.

In these times, it is becoming more common for couples (whether single sex or heterosexual) to remain unmarried, but still purchase real property together.  As married couples may split, so may unmarried couples.  However, the legal ramifications of such a split may differ for unmarried couples.  Because they are not married, no divorce action can be brought in the Supreme Court Matrimonial Part to resolve all property issues.  Therefore, a partition action would be necessary to resolve the issues regarding real property jointly owned by the couple.  Such an action would be brought by one of the owners, in order to have the property sold by the Court, if the parties cannot agree between themselves how to dispose of the real estate.

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Our readers  may be aware that there is a movement to pass sweeping Federal tax reforms. Some analysts have suggested that such proposed legislation may not be favorable to highly taxed areas such as New York and that home ownership may be discouraged as a result.  The proposed legislation in its current form may limit Federal deductions for real estate taxes to $10,000 per year.  Many properties in the areas served by our practice have yearly real estate tax obligations in excess of this amount.

There is a possibility that the legislation will not pass in its current form.  Also, homeowners always have the ability to contest their real estate taxes and potentially obtain a reduction.  The proposed purchaser may consider a house with taxes lower than or closer to $10,000 per year.  Over the course of decades of homeownership, laws affecting deductions of real estate taxes may change.  As a result, the decision to own a home should not be dictated merely by whether real estate taxes above $10,000 may be deducted.

Owning a single family home has the following additional benefits.  A sense of permanence from creating family memories over many years can only really take place in a house.  Building personal equity can only occur when real estate is owned.  If a person rents an apartment, he will merely pay rent every month and not have any resulting value to trade in.  However, if a house is purchased, the value is likely to increase, leading to a profit when the property is eventually sold.  Such profit can be converted to another property or investment in the future.

will-300x150As our political landscape is more uncertain than ever after this week’s election results, our readers  cannot be certain that estate tax repeal is on the horizon.  Also, most people do not own substantial assets so that estate taxes may apply to their estates.  However, most of our clients  could benefit from the drafting of a Will and other estate documents by a skilled attorney.  This post will address the benefits of engaging a qualified attorney to draft your estate documents.

Without a Will, one’s property will be left according to the laws of intestacy.  Intestacy distribution through an administration proceeding may serve most people well enough.  For instance, if one’s closest surviving relative is a daughter with whom there is a good relationship, the parent would have no problem with the daughter inheriting her entire estate.  However, if there is also a son with whom the parent has an estranged relationship, intestacy would result in both children sharing in the estate equally.  Since this is not a result favored by the parent, the drafting of a Will is essential so that the parent’s wishes that only the daughter inherit will be honored.  Also, should the parent wish for both children to inherit, but in unequal portions, a Will would be needed to address this desire.  Likewise, a Will can allocate responsibility for the payment of estate taxes between beneficiaries and may direct that only certain assets be liquidated in order to pay estate taxes.

When working with an attorney  to draft estate documents, the opportunity to select an executor to manage the estate is also available.  Otherwise, with intestacy, the person who inherits the estate also is appointed to serve as administrator to manage the estate.  This may not be a favorable result if this person is not as prudent in managing money as another person that may be selected by the decedent.

lock-300x300In the course of an ordinary real estate transaction, our firm orders a title report on the property being sold.  Contained in the title report is a judgment and lien search, which shows any outstanding judgments against the seller and liens against the property.  Why is this important?  In New York State, a money judgment, when filed in the Supreme Court of a county in which a debtor owns real property, become a lien on property for a period of ten (10) years.  Furthermore, a judgment creditor may file a motion at the end of the ten year period to extend the lien for an additional ten years.  After twenty years, the judgment is no longer a lien on the property.

Therefore, when a seller of real property has a recorded judgment less than ten years old, it becomes an issue which must be cleared prior to closing.  The reason for this is that the contract most likely provides that the property will be conveyed free of judgments and liens, and, in addition, a mortgage lender will not approve a loan to close without resolution of an outstanding judgment or lien.  If the judgment remains as a lien on the property, the new owner may find himself subject to a foreclosure proceeding against his newly-purchased property, even though the judgment was not incurred by him.

Since most standard Contracts of Sale in New York contain a clause that the property must be conveyed free of all outstanding liens and judgments, it is the seller’s responsibility to ensure that there are no judgments against the property.  Failure to do so would give the potential buyer grounds to have the contract cancelled and receive a refund of their downpayment.  Obviously a seller does not want that to happen.  What does a seller do when there are outstanding judgments of record?

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Our readers may have seen the recent report in The New York Times pertaining to the sale of Lord & Taylor’s flagship location in Manhattan to a co-working space company called WeWork. This seismic change in the use of “America’s Dress Address” is quite significant.  Lord & Taylor realized that its huge location in Manhattan was out of fashion and much more valuable when considered as a real estate asset only, rather than the proceeds generated by mostly clothing sales.  WeWork is a company most identifiable with the revolutionary means in which millennials are choosing to work.  Many millennials tend to be self-employed, but may prefer to work away from home.  They demand temporary and flexible work quarters.  WeWork allows such people to select a location for the short or long term at a price to be determined, without a long term commitment.  The worker or user has a professional location in which to engage in his occupation.

This post will address this transaction from a commercial leasing perspective.  The purchaser will use the Lord & Taylor property as its headquarters, through which it will presumably enter other commercial leasing transactions for other properties, and for shared work quarters in this property.  When entering commercial lease transactions for other properties, this author would suggest attempting to obtain the following provisions in such commercial leases.

Commercial leases typically identify the permitted use, such as real estate office, medical office and the like.  However, in this case, the tenant will want the use to be as broad as possible.  For instance, general office use, including co-working space and ancillary use may be suitable for this tenant.  That way, when multiple parties occupy and leave the premises and use the space for varied purposes, it will not be a lease violation.  Co-working spaces could be shared by diverse parties such as writers, day traders, salesmen as well as those who want to host conferences and meetings and the like.

hare-krishna-300x181A 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.

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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.

tiny“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.