COVID-19 Update: How we are serving and protecting our clients.

coupleOur firm receives numerous inquiries from couples who co-own property, although they have never married.  Many couples, whether they be man and woman or single sex couples, either delay getting married or do not get married at all, even if they have children together.  Although such couples may say that “it makes no difference” and that a marriage license is “just a piece of paper,” legally, it can make a great difference when an unmarried couple co-owns real estate.

If a legally married couple owns real estate together, any real estate they own jointly is generally considered marital property, and, if they decide to get divorced, the issue of the disposition of the property in question is resolved as part of an overall divorce settlement.  If the couple cannot agree whether to sell the property, then the divorce action may go to trial, with a Judge making the decision after hearing the facts in Court.

However, when an unmarried couple purchases real estate together, and decide to split up as a couple, it raises significant legal issues which may require a partition action to resolve. A partition action is brought when two or more people co-own real estate, and no longer wish to co-own the real estate together.  This can also apply to cooperative apartments, which are considered ownership of shares in a cooperative corporation, but which can also be the subject of a partition action.

foreclose-1Regular readers of this blog have been able to get information on how the COVID-19 pandemic has affected foreclosure actions in New York.  This post will serve as an update on current conditions in New York Courts.

At the beginning of the pandemic, New York Courts closed for all matters, including foreclosure cases.  In addition, executive orders from Governor Cuomo stayed all foreclosure cases from proceeding.  This meant that, at that time, no new foreclosure cases could be filed, and all foreclosure cases previously filed would not be allowed to proceed until allowed by New York State.

This obviously was a benefit to any party subject to a foreclosure action.  Even if the Court had, before the pandemic, granted a judgment of foreclosure and sale, the actual sale was not allowed to proceed.  In addition, both New York State and the federal government imposed further legal restrictions on all evictions.  This meant that even if the foreclosure sale had occurred prior to the “freezing” of all foreclosure cases, the new owner, whether it was the original lender or a successful bidder at a sale, had no legal means of evicting the former owner.

crown-300x224A recent story in the New York Post discusses a lawsuit brought by the City of New York against a prominent couple who are the owners and landlords of a brownstone located in the Crown Heights neighborhood of Brooklyn.  According to the allegations in the lawsuit, the couple sought to evict their tenants without any legal process.  In more detail, they are accused of, among other actions, using force and threatening to use force to induce occupants to vacate, removing occupants’ possessions from the Premises, and changing entrance door locks to the Premises without supplying replacement keys to the occupants.

The lawsuit seeks civil penalties for violations of the New York City Unlawful Eviction Law, as well as a permanent injunction prohibiting the owners from engaging in any further attempt at unlawful eviction of tenants and occupants, or any further tenant harassment.

Our firm has consulted with many landlords over the years regarding potential evictions of tenants.  One course of action that we would never advise a landlord to do is to attempt to evict the tenant themselves, without the benefit of the legal process.  While there are obviously many problem tenants, all tenants in New York State are protected by laws relating to evictions.  Any eviction must start by serving the tenants with the initial notices (known as predicate notices) which advise the tenants that an eviction action may be brought in the future, either because the lease has expired, or because the tenant has failed to pay rent due.

montauk-300x182A recent news story in the New York Post raises important issues regarding the effects of the coronavirus pandemic on evictions in New York State.  According to the report, an “Intragram influencer” named Marisa Hochberg owes at least $14,000.00 in past due rent on her summer rental in Montauk, and has refused to vacate the premises, even though her lease expired several months ago.

In ordinary times, an eviction action would be brought by the attorneys for the homeowners in the local landlord-tenant Court, seeking to evict the tenant.  In the Hochberg case, the tenant could be the subject of either a holdover action, or a non-payment action.  First, as her lease expired by its terms, this makes her a month-to-month tenant subject to termination on proper notice (holdover action).  Second, as she has failed to pay rent due, this also allows the possibility of a non-payment proceeding being brought against her.

However, as our readers are aware, these are not ordinary times.  Not all landlord-tenant courts, which are local in nature, are scheduling and hearing cases on a regular basis, due to COVID concerns.  Before attempting to file a case in a local landlord-tenant Court, experienced counsel should contact the Court directly to ensure that they are accepting and scheduling new cases.

deliSuccessful contemporary art dealer Andre Zarre passed away and left his massive multi-million dollar estate solely to a deli worker, who was also nominated as Executor to the estate.  Does this situation strike our readers  as a legal result that can be contested?  The answer is yes, for the reasons discussed in this post.

Although Zarre was a successful art dealer, his entrepreneurial spirit led to his eventual ownership of a Queens deli.  The deli worker Jose Yeje was either in charge of the deli or a co-owner, depending upon the version of events that one wants to believe.  Zarre’s health deteriorated to the extent that he eventually became legally blind, had significant mobility issues, and advanced heart disease.  At the same time, the relationship between Zarre and Yeje progressed to the point that Yeje became Zarre’s trusted caretaker.  Then, Zarre signed the subject Will, shortly before his death.

When an estate is administered , the executor of a will needs to obtain waivers from those who could inherit under New York’s intestacy statute .  Otherwise, such persons maintain their legal right to challenge the will being sought to be admitted to probate.  Yeje’s legal counsel approached Zarre’s cousin to obtain such a waiver.  The cousin was shocked because Zarre had previously promised to leave his estate to the cousin and potentially other relatives.  It will remain to be seen how the Surrogate’s Court  will evaluate the validity of this promise.  When a waiver is not delivered, the proponent of the will then needs to serve the person requested to waive with a citation to attend a Court appearance  for the purpose of raising legal issues why the will should not be admitted to probate.

divide-300x225Our firm often handles partition matters where two or more people co-own a property.  Under New York law, no one is forced to co-own property if they do not want to.  As a result, a partition action may be brought to have the property sold by the Court and the proceeds fairly divided between the co-owners.

Most, if not all, of partition actions are settled without actually having a Court-ordered sale of the property.  Usually the parties reach an agreement to either sell the property to a third party or arrange to have one of the parties buy the other’s interest in the property.

However, the question usually arises regarding what may be a fair division of the proceeds in the resolution of a partition case.  This post will explore the various factors which may arise in such a situation.

auction-300x206Some of our prior blog posts have dealt with foreclosure actions concerning real property.  A recent New York Supreme Court case, however, deals with a different type of foreclosure, and the effects of the COVID-19 pandemic on the same.

Most foreclosure cases in New York State are of the judicial type, and deal with the foreclosure of real property.  In a judicial foreclosure, the owner of real property gives a mortgage and note to a lender, in exchange for a loan.  The real property is collateral for the loan.  If the borrower fails to repay the loan, or otherwise defaults on the loan by failing to follow the loan terms, the lender may file a foreclosure action in the appropriate New York State Court, which would be the Supreme Court in the county in which the property is located.

New York State currently has a moratorium, due to the effects of the coronavirus, on judicial foreclosures.  Under this Administrative Order, “no auction or sale of property in any residential or commercial matter shall be scheduled to occur prior to October 15, 2020.”  However, not every foreclosure case in New York is a judicial foreclosure, requiring a Court proceeding.  Non-judicial foreclosures occur most commonly in coop matters.  An owner of a cooperative apartment does not own real property, but, rather, shares in the cooperative corporation, which, in turn, owns the real property on which the building is located.  As a result, if the shareholder defaults on a share loan, the lender may foreclosure on the shares without Court intervention.  The lender can issue notices under the Uniform Commercial Code (UCC), which is integrated into New York law, and have an auction sale under the UCC rules, without going to Court.

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