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

hochul-300x169With the beginning of the COVID-19 pandemic, New York, along with many other states, adopted a law temporarily halting evictions.  In addition, there was an additional moratorium that prevented foreclosure cases from going forward in Court.

This blog post will focus on the eviction moratorium, its effects, and its expiration as of January 15, 2022.  The original moratorium went into effect in March of 2020.  The statute initially provided that if a landlord sought eviction against a tenant, the tenant could complete a form which stated that they were suffering from a COVID-19 related hardship which affected their health and ability to move, or from a financial hardship caused by COVID-19.  Once the form was completed and send to either the Court, the landlord, or the landlord’s attorney, the eviction proceeding would be stayed until the moratorium was lifted.

The main problem with this statute was that it provided a landlord no opportunity to rebut the tenant’s assertion that they were negatively impacted by the COVID-19 pandemic, and that such impact affected their ability to pay their rent, or to find new living arrangements.  A group of landlords challenged the constitutionality of that statute in a lawsuit.  Ultimately, the United States Supreme Court ruled that, in order for the statute to be constitutional, the landlords should have the right to challenge the tenant’s hardship declaration in Court.  Eventually, the moratorium statute was amended by the New York State legislature to allow landlords to request a hearing if they wanted to challenge a tenant’s hardship declaration in Court.  If the Court subsequently found that the tenant could not prove his allegations that he was suffering from a COVID-19 related hardship, then the Court could rule that the eviction moratorium did not apply to that particular case, and allow the eviction matter to proceed in its normal course.

settlementOur firm receives many inquiries from co-owners of properties.  As longtime readers of this blog are aware, a partition action can be brought in the appropriate Court when co-owners cannot agree on the disposition of real property.  Such an action would demand that the Court appoint a Referee to determine the respective shares of the co-owners, and, if necessary, actually sell the property.

However, there are often situations in which the parties may agree to the disposition of the property without resorting to actual litigation.  In this pre-litigation period, the parties, through their attorneys, may negotiate a resolution in which either one party can buy the other’s share of the property, or agree to jointly sell the property and share the proceeds.  In such a situation, experienced counsel should prepare a written agreement, to ensure compliance with the parties’ understanding.

What provisions should be included in such an agreement?  The agreement should first state that the parties are co-owners of the property, and the exact amount of their percentage shares of ownership.  Next, there should be terms for the disposition of the property.  For example, two brothers inherit a house from their parents, and agree to sell the property and share the proceeds equally.  The agreement should state that the parties will cooperate in hiring a licensed real estate broker to market and sell the property.  The agreement may even include more details, such as the name of the real estate broker, and the initial listing price for the property.

property-300x200Our firm handles many partition actions.  A partition action is brought when two or more people jointly own real property (or shares in a cooperative), and one or more of the owners no longer wishes to co-own the property.  In New York State, there is generally an absolute right to a partition in such situations.  This means that when a case is brought, the Court will, assuming the basic legal requirements are met, order that the property be sold and the proceeds equitably divided between the co-owners.

However, as is often the case in the law, there are always exceptions to the general rule.  This post will discuss some of the exceptions, and how they may affect a partition action.  The most common exception is when there is a prior written agreement between the co-owners regarding the ownership of the property.  Under New York law, the agreement must be in writing, and cannot be an oral agreement.

What type of agreement is contemplated by this exception?  The first type of agreement would be a contract between the parties to sell their interest to a third party, or for one co-owner to sell his interest to the other.  If such a contract exists, and is still legally valid, it would prevent the Court from allowing the property to be sold through the Court-ordered partition process, as the terms of the contract would control the disposition of the property.

Eviction-Notice-woth-face-mask-1280x720-1-300x169As readers of this blog may be aware, the events of 2020 and 2021 relating to the COVID-19 pandemic have had a significant effect on the status of landlord-tenant actions in New York State.  By a series of executive orders, then-Governor Cuomo stayed evictions from taking place in New York State, with the last extension of the eviction moratorium to end as of August 31, 2021.

Mr. Cuomo, however, is no longer governor of the State of New York.  Due to a series of scandals involving alleged sexual harassment, as well as his handling of nursing home patients infected with COVID-19, he resigned from his position as of August 24, 2021, and was replaced by Lieutenant Governor Kathy Hochul.

Governor Hochul, shortly after taking office, decided to take definitive action regarding the soon-to-be-expiring eviction moratorium.  She called a special session of the New York State Legislature, with the express purpose of extending the eviction moratorium.  As a result, the eviction moratorium in New York was extended through January 15, 2022.  However, due to a recent United States Supreme Court decision, landlords are permitted to have their day in Court to challenge a tenant’s claim that their ability to pay their rent was adversely affected by the COVID-19 pandemic.

floodSeveral of our law firm’s clients have been adversely affected by flooding caused by Hurricane IdaWe wish to offer our sympathy for all of those affected.  This post will address the legal issues raised from this storm event and offer potential solutions.

Let’s consider the issues from a purchaser’s perspective.  Prior to entry into a contract, due diligence  should be conducted by the purchaser concerning potential property issues.  Most notably, it should be determined before the contract is signed whether the property is in a flood zone, so that the purchaser can consider whether he wishes to take on this potential additional risk.  In addition, if the property is in a flood zone, the lender will most likely require the purchaser to obtain flood insurance, which is quite costly and will be added to the monthly mortgage payment after closing.  The mortgage lender will need to be involved because the value of the collateral, the house, may have been severely damaged and the lender will want to ensure that the property is rebuilt to its former state.  Also, lenders may be willing to grant a payment forbearance to the purchaser, so that mortgage payments will not be due for a set period of time from borrowers affected by a disaster.

The following issues are of concern to a property seller when a significant flood event occurs.  Properties are appraised during the purchaser’s loan application process to confirm that the property value supports the amount of the loan.  Lenders will want to conduct an additional inspection after the flood to confirm that the property has not been damaged or otherwise lost value after the date of the appraisal.  Concerned purchasers and their home inspectors may also be expected to make another evaluation of property condition.

Eviction-Moratorium-1-300x189-2The events of 2020 and 2021 relating to the COVID-19 pandemic have had a great effect on the status of landlord-tenant actions in New York State.  By a series of executive orders, Governor Cuomo stayed evictions from taking place in New York State for the last sixteen months. The current stay is due to expire on August 31, 2021.

Those who follow the news are aware that Governor Cuomo will shortly no longer be governor of New York, as he has resigned his position after a series of scandals involving alleged sexual harassment, as well as his handling of the COVID-19 situation.  In a few weeks, he will be replaced by Lieutenant Governor Kathy Hochul.

Whether Cuomo will extend the eviction moratorium before he leaves office is unknown at this time.  Also unknown is whether soon-to-be Governor Hochel intends to extend the eviction moratorium.  Under the current moratorium, tenants can avoid being evicted if they complete a form affirming that their ability to pay their rent, or their ability to locate a new residence, has been affected by COVID-19.  If the moratorium is not extended, it is possible that evictions in New York State will resume on September 1, 2021, and the Landlord-Tenant Courts will resume “business as usual” at that point.

mortgage-300x250Our firm handles many cases where two or more people co-own property, and there is a dispute between the parties over whether to sell the property.  These situations can be resolved in Court by bringing a partition action, as has been discussed in prior blog posts.  However, our attorneys always attempt to negotiate a resolution before bringing an action in Court.  Such resolutions may involve one party buying out the interests of the other, or all owners agreeing to list the property for sale, and sell the property to a third party, with the co-owners dividing the proceeds.

One important issue that often arises in these situations is where there is an outstanding mortgage on the property.  Co-owners, when they buy the property, may take out a loan to cover the purchase price.  In most cases, all co-owners will be signatories on the note and mortgage, meaning that they are both individually and jointly liable for the obligations under the note (which is a contract to repay the amount borrowed).

Mortgage loans are usually made with an institutional lender, such as a bank or credit union.  However, what happens when one party agrees to buy the other out in a settlement of a partition action?  For example, an unmarried couple purchases a house together and takes out a mortgage in the amount of $500,000.00.  Both parties sign the note and mortgage and are therefore co-obligors for the loan obligations.  They then split up, and one of the individuals wishes to retain the property and continue living there.   Although they may agree on a “buyout price,” where the individual remaining in the house purchases the equity interest of the departing person, the mortgage and note is still outstanding as far as the bank concerned, both parties remain legally responsible for the loan, and both parties can be sued in a foreclosure action if future payments are not made.

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