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bew-300x140Caveat emptor is a Latin phrase loosely translated to mean “let the buyer beware.”  Real estate in New York State has customarily been transferred under this concept, meaning that the seller is not obligated to disclose property conditions and the onus is on the buyer to discover conditions that may be objectionable.  In 2001, this concept eroded somewhat with the enactment of Article 14 of the Real Property Law, known as the property condition disclosure statement law (“PCDSL”).  Sellers of residential property were required to complete a lengthy questionnaire concerning property conditions.  If the seller preferred not to complete the form, the seller was required to issue a $500 credit to the buyer at the closing, as was customary in downstate counties serviced by our firm.

Recently, Governor Kathy Hochul signed an amendment to the PCDSL that added disclosures concerning flood risks and history.  Most significantly, the amendment, which becomes effective on March 20, 2024, removes the seller’s option to issue a $500 credit to the buyer and requires the completion of the questionnaire before the contract is signed.  The law explicitly states that it is not a warranty by the seller and does not substitute for inspections that the buyer may conduct.  Typically, a real estate agent or experienced real estate attorney will recommend that the buyer hire a professional inspector to evaluate property conditions.  Inspectors will often discover concerns such as asbestos in the furnace room.  A qualified attorney may integrate repair issues in contract negotiations.  Armed with additional information from the completed disclosure form, a buyer may threaten to walk away from a transaction without additional contractual concessions.

The new law provides that knowingly false or incomplete statements made by the seller can subject the seller to claims after the closing.  This is a departure from standard New York law whereby the buyer’s acceptance of the deed at the closing is deemed to be full acceptance of any property conditions, whether known or unknown to the buyer.

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power-of-attorney--300x200News outlets have recently reported that Senator Dianne Feinstein has given a power of attorney to her daughter.  Concerns over the Senator’s mental competency have arisen as a result.  For the reasons discussed in this post, appointing an agent by power of attorney does not necessarily mean that one is incompetent to handle one’s legal and financial affairs.

In New York State, there are various types of powers of attorney, governed by a provision of the General Obligations Law.  In all cases, the person making the power of attorney is the principal who appoints a person or persons to act on one’s behalf, an agent.  The standard form of power of attorney appoints one or two agents, who may or may not be required to act together.  Up to any of fifteen legal actions can be authorized or all fifteen actions can be authorized.  Some examples of the actions that could be authorized include real estate transactions, banking, insurance and tax matters.  The document needs to be initialed and signed by the principal, as well as notarized and witnessed by two persons.  The agent cannot be a notary or witness to the document, but the agent needs to sign a portion of the document before a notary accepting the role as agent.  This type of power of attorney is effective immediately and is not dependent upon whether a person is competent.

The standard power of attorney can also limit the agent to acting with respect to a specific matter.  For instance, if the principal will not be attending her house closing, she can appoint her attorney for the limited purpose of all matters required to complete a specific transaction.  In this case, only some of the fifteen potential actions will be authorized.  This limitation protects both the principal and the agent, since the agent cannot conduct actions beyond those required for the closing.  The agent appointed could be a spouse or other relative, a friend or one’s attorney.  Depending upon the closeness of the relationship and the degree of trust, the principal will decide whether the authority should be immediate or limited in any way.

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sanfran-300x300Tony Bennett was beloved by those young and old not only as a talented singer, but as a World War II veteran and civil rights icon.  His recent death at the age of 96 was not unexpected.  This post will identify the legal issues that may be raised when a person such as Tony Bennett passes.

Mr. Bennett could be considered to have been in a New York State of Mind, having been born and dying in New York State.  He was considered to be well-liked by all, except for potentially his two ex-wives who may have said “I’ve Got You Under My Skin” as they completed their divorce proceedings.  We have posted previously as to whether an estranged or divorced spouse has the legal right to inherit.  Even a promise to include an ex-spouse in one’s Will, as may be desirable in resolving a divorce proceeding, is not enforceable in New York.  Unless Mr. Bennett had explicitly left assets to his ex-wives in a Will or Trust, these ex-spouses would not have a valid claim to his estate.

The admired crooner was married to his third wife at the time of his death.  Potentially his most recent wife had a conflict with his four children, whose mothers were either his first or second wives.  In addition, two of his four children assisted Mr. Bennett in his career, so he may have wanted to leave them more assets or they stand to gain other financial benefits from having worked alongside their father.  It should be noted that Mr. Bennett’s two daughters were also the children of his second wife and but were born before their marriage.  If Tony had no Will, an estate administration would need to be conducted and proof of paternity would need to be established so that his daughters could legally inherit from his estate.

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rise-help-up-support-climb-300x192This post comes with a “spoiler alert” warning.  Like many, this author has become obsessed with the Max show Succession, not merely as a television viewer, but for the legal issues raised by the storylines.  We  will discuss the multiple legal issues covered in the Emmy award-winning series.

The jaw dropping images of real estate are practically a character on the show.  The townhouse on Fifth Avenue across from the Metropolitan Museum of Art was the primary residence of Waystar/Royco’s founder and patriarch Logan Roy.  The home was shared with his third wife, who obtained the property in their divorce.  After Logan’s death, Marcia and Logan’s oldest child Connor were visiting the home.  Marcia and Connor started a discussion whereby Connor expressed interest in buying the home from Marcia, who said that she was looking for sixty to seventy million dollars.  Connor said he would pay sixty-three million dollars, and they verbally agreed to the deal.  A verbal agreement to sell real estate is not binding in New York State.  The statute of frauds requires that contracts pertaining to real estate be in writing.  Marcia could have backed out of her agreement to sell the property to Connor.  However, Connor and his wife were in control of the townhouse in a later episode, so Marcia must have followed through with her oral agreement to sell the property to Connor.

Estate matters also figure prominently in the series.  Connor introduces a “sticker system” to distribute personal property in the townhouse that he purchased.  Logan’s children were to affix stickers to personal property in Logan’s townhouse to indicate which items they wanted.  Then, the “second tier bereaved,” such as Logan’s last mistress, would have an opportunity to select items.  While this may be a relatively good method with which to distribute personal property, the question arises as to why Connor was in charge of this process.  Was he nominated as Executor of Logan’s estate?  It would not be realistic for Connor to have been officially appointed as Executor within days of Logan’s death.  Another possibility is that Marcia owned these items as part of the acquisition of the townhouse in her divorce and that she decided to sell the items to Connor along with the townhouse.

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hennepin-300x169Several prior blog posts discussed the Supreme Court case Tyler v. Hennepin County, Minnesota, which addressed to whether the government could keep surplus funds in tax lien foreclosures.  Geraldine Tyler is a 94 year old woman living in Minnesota who owed $2,300.00 in unpaid property taxes for her condominium.  Due to her age and safety concerns, she moved to a nursing home and the condominium was sold by the county to pay her unpaid property tax bill.

The property was sold by the County at auction for $40,000.00.  Ms. Tyler’s unpaid tax bill was only $15,000.00 once interest and late fees were included.  So what happened to the extra $25,000.00?  Under existing law in Minnesota, Hennepin County (the County in which the condominium was located), kept the excess funds for itself.

Ms. Tyler then sued, claiming that allowing the County to keep the funds in excess of what she owed in taxes was an unconstitutional taking of her property.  The relevant clause is located in the Fifth Amendment of U.S. Constitution and states that “Nor shall private property be taken for public use, without just compensation.”

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tyler-216x300A prior blog post discussed a case now before the United States Supreme Court relating to surplus funds in tax lien foreclosures.  The case involved a 94 year old woman in Minnesota who owed $2,300.00 in unpaid property taxes.  The property was sold by the county for $40,000.00.  The county then kept the excess funds from the sale, and, under the existing law, did not return the surplus funds to the former homeowner.

Several states, including New York, have similar laws.  In New York State, if your property is sold to pay an overdue tax lien, any funds received from the sale belong to the government, and not to the person whose property was seized, even if they greatly exceed the amount owed in delinquent taxes.

The U.S. Supreme Court recently heard oral arguments on this case.  During these arguments, Justice Elena Kagan asked, if the property was worth one million dollars, and the tax bill was only five dollars, would the county keep the excess funds?  The attorney representing Hennepin County in Minnesota basically answered in the affirmative.

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