fatherOur firm wants to extend its best wishes to all Dads for a happy Father’s Day.  We would like to mention some gift ideas of a legal nature that cannot be purchased in an ordinary department store.

Your Father may be on the verge of retirement.  As such, he may be in the market for a qualified attorney  who will negotiate and document the terms of his business sale.  Such a sale may involve preparation of a contract of sale, coordination of the payoff of a business or equipment loan, closing document drafting and the like.  Once the transaction is complete, your Dad can enjoy a care-free retirement.

If your Father is not ready to retire, he may have an ongoing business in the process of relocation.  Our attorneys would welcome the opportunity to negotiate the commercial lease for the new space. We would negotiate its terms in a manner most favorable to dear old Dad.

Time-to-GoPrior blog posts have discussed eviction actions after foreclosures in New York State.  Recently, due to the increased number of cases going to a final judgment of foreclosure and sale, and then being sold, there is an increased amount of tenants in foreclosed properties.  This post will discuss the legal status of these tenants and the possibility of eviction.

A fast summary of the legal foreclosure proceedings is in order at this point.  Once a Court issues a final judgment of foreclosure and sale, the property in question is then sold at public auction.  The highest bidder then pays the amount bid to the court-appointed Referee, and receives a Referee’s Deed, which is evidence of their ownership of the property.  The former owner’s interest is extinguished, together with the interest of any of the former owner’s judgment creditors.

Of course, the former owner may never vacate the premises.  Once their ownership interest is extinguished, they are subject to eviction by the new owner (the successful bidder at the foreclosure auction).  This may be the original lending institution, or an individual or corporate third party who purchases the property as an investment.  If the former owner is still occupying the premises, they are considered a holdover tenant.  Under the law, they must receive proper notice prior to an eviction proceeding being brought.  If they do not vacate within a particular period of time, the new owner can then commence a holdover eviction proceeding in the appropriate local court having jurisdiction over landlord-tenant matters.  For example, if the property was located in White Plains, then a holdover proceeding would be brought in White Plains City Court.

roof-300x237Now that the weather has finally improved in the New York metropolitan area ny-300x154  and Memorial Day weekend is fast approaching, many of our readers  may want to consider whether their cooperative building  provides access to their rooftop.  Carole King and Gerry Goffin , and later James Taylor , have sung these words while imagining their roof decks: “I climb way up to the top of the stairs and all my cares just drift right into space.”  Our readers must wonder is such a “…paradise…trouble proof?” This post will examine the legal issues to consider when converting an ordinary roof of a cooperative building into a recreational roof deck.

First, we will examine this situation assuming that the roof deck amenity is to be shared by all residents of the cooperative.  A qualified attorney  should review the cooperative’s governing documents to determine whether the Board of Directors or all shareholders are required to approve this project.  If a building-wide assessment needs to be implemented to fund the project, the governing documents may also advise your attorney  whether a Board resolution or a vote of the shareholders at an annual or special shareholders meeting  is required to authorize the assessment.

Next, let’s consider another situation, where the roof deck amenity is to be used exclusively by only one shareholder, usually the resident on the top floor.  The shareholder has agreed to buy this common area space, thus enhancing the cooperative’s coffers.  Prior to the project, the roof is common space owned by the cooperative.  For any particular shareholder to purchase this space, shares of stock need to be allocated to the space.  Unissued stock is called treasury stock.  Hopefully, the cooperative at issue has not already issued all of its stock.  A specialized real estate broker needs to determine that the number of shares to be issued to this area bear a reasonable relationship to the proportion of shares already issued for apartments in the building.  For instance, the broker will consider that 100 shares are issued for apartment 5A with 1,000 square feet and likewise for other apartments.  From that data, the broker will determine how many shares should be issued for the roof deck and the resulting purchase price.  Also, the cooperative attorney  will need to obtain a “no-action letter’ from the Attorney General of the State of New York  authorizing that a certain number of shares be issued for the space and that the cooperative is legally authorized to sell it to the shareholder.

guarantyMany landlords of commercial property  require that the obligations of the tenant be guaranteed by an individual or affiliated entity.  Most tenants of commercial leases are an entity, such as a corporation or limited liability company, whose only asset is the business engaged in the leased premises.  If the entity tenant cannot perform its lease obligations or leaves before the end of the lease, the landlord has no remedy besides renting the premises to a new tenant.  For this reason, most landlords require that an individual or entity closely affiliated with the tenant guaranty the tenant’s requirements.  That way, other assets of the guarantor may be available to the landlord if the tenant defaults under the lease.  This post will examine the various types of guaranties that may be requested by a landlord.

A full guaranty is the most broad, wherein the guarantor covers all of the tenant’s obligations under the lease.  Such obligations would include paying rent, real estate tax escalations, utility payments, common area maintenance payments, maintaining proper insurance, repair obligations and the like.  Landlords prefer this type of guaranty because there is no limit on the amount or extent of the obligation covered.  Also, the landlord does not need to meet any condition before enforcing the guaranty against the guarantor.

A partial guaranty is more limited.  Perhaps the obligations covered are only those that are monetary in nature or up to a certain amount.  Other limited guaranties may cover lease obligations such as keeping up with maintenance and repair obligations.  Partial guaranties could also “burn down” or “sunset” over time.  For instance, after a certain period of perfect performance by the tenant, the amount guaranteed reduces or the partial guaranty terminates entirely.  In partial guaranties, the landlord may need to meet certain conditions before it is enforced against the guarantor.

18If you are like this author , someone close to you may be about to turn eighteen years of age.  This post will discuss the legal ramifications of turning eighteen.  Additional rights and privileges as well as legal responsibilities occur once a “child” becomes eighteen.  Such a person can now vote, run for office, legally support oneself, and be employed full-time.  An eighteen year old male will be penalized if he does not register for the military draft.  All eighteen year olds are treated as adults if they commit a crime.  Since we  practice particular areas of law, this author will address the implications of turning eighteen as they apply to those areas of law.  Also, rights and obligations vary by state, so this post will only address these matters as they relate to New York.

Eighteen year olds have the right to enter a contract and to apply for credit.  Therefore, our soon-to-be eighteen year old can apply for a mortgage and sign a contract to buy a house.  Contracts involving real estate, whether for sale or for a lease of more than one year must be in writing.

Once a person is eighteen, he can make a Will and other estate documents.  While we do not want to consider that someone so young may pass away, without a Will, his assets will be distributed according to New York’s intestacy law.  Also, an eighteen year old can inherit from someone who named him in a Will or in an Administration proceeding if he is of the proper degree of relation according to the New York statute.  Since many eighteen year olds may not be sophisticated enough to inherit substantial assets, those drafting Wills may decide to leave such assets to the child in trust until such age as they anticipate that the child will be mature enough to manage the assets.

hand-300x169Prior blog posts have discussed foreclosure proceedings, from the commencement of a foreclosure case to the entry of a Judgment of Sale and the public auction of the property.  Many clients then ask, what happens next?  Is it possible for the owner who has been foreclosed already to recover the property after it has been sold at a foreclosure sale?  The answer to this question is a definite yes.

A public auction of foreclosed property will generally have two outcomes.  In the first, the bank or other lending institution which brought the foreclosure case will acquire title to the property.  This usually happens when either no one bids for the property, or when no bid exceeds the amount owned to the lender under the judgment of foreclosure.  The other outcome is when a third party bids over the amount of the judgment, then obtains title, while paying the lender the full amount of its judgment (or a smaller amount negotiated with the lender).

In such cases, the original owner of the property may retain legal possession of the property.  Although he may no longer be the legal owner, he maintains a right of possession, until an eviction action is brought against him.  Sometimes, the owner’s financial circumstances may have improved and he may be in a position to repurchase the property from the successful bidder.  The successful bidder may consider this a positive outcome as he would not have to bring an eviction case to obtain legal possession, and the occupant will pay him more than he paid to acquire the property, ensuring a profit.

springmarketkNow that we’re entering the Spring real estate market , we should anticipate that our real estate clientele will be entering into new real estate contracts for their real estate purchases.  Certain clauses of such contracts should be negotiated in a particular manner, depending upon whether your attorney  is representing a buyer or a seller.

A seller may have decided to forego the services of a professional real estate agent  or the property may have been on the market for an extended period of time.  In these situations, the seller may be more amenable to certain requests of the buyer, such as making certain repairs before closing.  The seller may not know that some of the requests are not customary or may need to move the property, which may result in more flexibility on such matters.

Your attorneys  should pay particular attention to personal property issues , whether representing a buyer or a seller.  The seller will be disappointed to find that a treasured chandelier was not excluded from the personal property to be sold with the house.  A buyer may not approve of the removal of wall scones, without repairs being made to the wall after removal.

gorsuch-300x169Hearings have recently been held to confirm Judge Neil Gorsuch as a Supreme Court Justice.  While the hearings certainly involve a great deal of politics, they also raise the question of the proper role of a Judge in our legal system, whether that person is a Judge in a local Court, such as Westchester’s Village Courts and Justice Courts, in which Landlord-Tenant cases are heard, all the way up to the United States Supreme Court.

In general, a Judge’s role in our legal system is to interpret the laws passed by our legislators.  This role should be the same in any level in which the Judge may serve.  Let’s go through an example that has come up in our firm’s landlord-tenant practice.  A law was passed by the New York State Legislature requiring that the Referee’s Deed be exhibited to any tenant that the owner is attempting to evict after foreclosure.

As with many laws, this statute does not specifically define what “exhibiting” a deed to a tenant actually means.  Is it acceptable to simply mail or e-mail the deed to the person, or is more required?  Does a licensed process server need to come to the person’s place of residence and show them the deed in question, as if they were serving legal process? What if the person is not home, or refuses to answer the door when a process server comes knocking?

stripcenterOur firm is routinely involved in commercial lease negotiations.  This post will address the “give and take” that takes place in such negotiations, while discussing the legal issues that commonly arise.  For convenience sake, let’s assume that our attorney is negotiating on behalf of a retail store tenant engaged in a food business in a suburban strip center.

Commercial leases typically span several decades and are not rent-regulated.  Both landlord and tenant cannot envision business conditions or pricing over such a timeframe.  Most leases will run for an initial term, potentially for ten years.  The parties may wish to include a renewal provision, potentially for another five years.  Is such a renewal term to be a requirement for the landlord to offer or an option to renew on behalf of the landlord or tenant?  If the option to renew is for the tenant, one may find provisions as to the timeframe in which to exercise the option, so that the landlord can make the space available to another tenant without a vacant period of time.

The determination of rent to be charged during the renewal period is tricky.  The parties could state in the current lease that the renewal period rent will be a certain percentage above that charged in the last year of the lease.  This provides certainty but may be too high or too low for market conditions at the time of renewal.  The other option is for the renewal rent to be determined by an appraiser to be mutually selected by the landlord and tenant.  The inherent problems in this formula are that there may be a disagreement on the selection of the appraiser and the rent to be charged would be uncertain.