supctMany of our readers are aware that the United States Supreme Court recently overturned Roe v. Wade, its landmark decision wherein it determined that the right to privacy derived from the 14th Amendment to the Constitution applies to abortion rights.  Dobbs v. Jackson Women’s Health Organization , found that abortion rights should now be determined by each individual state, instead of at the Federal level.  Justice Samuel A. Alito, Jr., as lead author of Dobbs, wrote that the Court was ruling with respect to abortion rights only, but not as to other rights derived from the line of right to privacy cases, such as contraception and same-sex marriage.  The concurring opinion of Justice Thomas in Dobbs raised concern because he suggested that the Court should reconsider other privacy cases.  While it is not this author’s intent to comment on the abortion rights debate, it is the intent of this post to highlight legal protections required by same-sex couples, particularly with respect to estate planning should marriage equality not be consistently upheld on the Federal level.

In Obergefell v. Hodges , the Court found that same-sex marriage is a right derived from the 14th Amendment to the Constitution.  However, if this decision is reexamined and overturned, the implications for same-sex couples could be severe.  Those persons already married may have the rug pulled out from under them and be legally considered to be unmarried, depending upon their state.  It should be noted that there is a movement to pass legislation at the Federal level to codify the right to same-sex marriage.  Such legislation may not be ultimately passed into law or could be overturned by future Supreme Court rulings.

Unmarried couples should engage the services of experienced attorneys to draft estate documents, such as Wills, Trusts, Living Wills, Health Care Proxies and Powers of Attorneys.  The reason for this activity is that the law generally considers that default decision maker to be the spouse with respect to end of life health care decisions and distribution of assets.   Same-sex partners may not always be considered to be legal spouses if judicial decisions continue to follow this conservative route.  If a person dies without a Will in New York, the applicable statute determines the distribution of assets and who may be the Administrator of the EstateUnless same-sex marriage is consistently recognized, a same-sex partner may be excluded from receiving assets and from acting as Administrator.  Family members who are estranged from the deceased could take the place of the intended life partner in this event.  The best way to prevent this outcome is to have professionally prepared estate documents in place that comply with one’s wishes and clearly state that the same-sex partner is to inherit and serve as fiduciary for the Estate.

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Our firm often receives inquires regarding renewals of residential leases.  As prior blog posts have discussed, in general, a tenant in New York has no legal right to a renewal lease, unless the rental unit is subject to some type of rent regulation.  Another exception may be where the lease itself contains a clause that allows either party to renew the lease upon proper notice to the other party.  The notice period may be 30 or 60 days (or another time length) prior to the current lease expiration, so it is important for experienced counsel to review residential leases to ensure that, if a party wishes to renew, proper notice is timely sent to the other party under the lease terms.

A common situation arises when the landlord does not wish to renew a tenant’s lease.  Provided the rental unit is not subject to rent regulation, under current New York law, the landlord does not have to provide a reason for such non-renewal.  However, the non-renewal cannot be for discriminatory purposes against the tenant in question.  In 2019, New York law was changed regarding non-renewal of tenant’s leases.  These changes will be discussed in this post.

Under the revised law, also known as the Housing Stability & Tenant Protection Act of 2019, which became fully effective in October, 2019, landlords are now required to give notice when they decide not to renew a tenant’s lease.  The amount of time required for the notice depends on how long the tenant has occupied the premises, as well as the length of their lease term.  If the tenant has lived in the unit for less than one year, and their current lease does not have a term of at least one year, the landlord must give thirty day’s notice of non-renewal.  Since most residential lease terms are for at least one year, this subsection will rarely apply.

surplusfunds-300x200Prior blog posts have discussed the concept of surplus monies in foreclosure proceedings.  When a foreclosed property is sold at public auction, the winning bid may exceed the total amount owed to the entity foreclosing on the property.  In such a case, the excess funds are considered “surplus funds,” and the Court-appointed Referee will then deposit the surplus funds with the New York State Department of Finance, which has the authority to disburse the funds to the proper party, upon receipt of a Court order from the Court that handled the original foreclosure case.

The question of who exactly is the “proper party” is one that our firm has encountered fairly often.  There are several situations in which more than one entity may have claims to the surplus funds.  This post will further discuss those situations.

In general, the original owner of the property (prior to the foreclosure sale) has the first claim to any surplus funds.  If it is an individual, he can retain experienced counsel to file the proper motion papers to obtain a Court order allowing disbursements of the funds.  There may be situations where the property was owned by a corporation or other entity with multiple owners.  In such cases, the entity itself would be entitled to the surplus funds.  If it is a corporation, the funds would be payable to the corporation itself.  The corporation’s governing documents would then determine how the corporation would disburse the funds.

good-cause-eviction-1-678x381-1-300x169A recent article in the New York Post discusses a proposed bill relating to evictions which is being considered by the New York State legislature.  The “Good Cause” eviction bill would limit evictions in New York to only the narrowest of circumstances.

Since the expiration of the COVID-19 eviction moratorium in January, evictions have generally resumed in New York.  Under the moratorium, landlords were prevented from evicting tenants, unless they were an actual danger to people and property.  As COVID-19 waned, the Governor allowed the moratorium to expire.  As a result, landlord-tenant Courts have generally resumed normal operations, and tenants have been subject to evictions after proper Court proceedings have been held.

However, as a result of the temporary eviction moratorium, there have been some advocates who are attempting to further limit evictions, even though COVID-19 has waned and available vaccines have greatly reduced the risk factors for most individuals.  Under the proposed “Good Cause” eviction bill, landlords would not be allowed to evict tenants, except for non-payment of rent and lease violations.

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We have encountered parties to real estate transactions who get “cold feet” between the time of contract signing and closing.  These persons may seek to break the legally binding contract that they have signed and cancel the deal.  This post will address when failing to perform a real estate contract may be permitted and the risks involved should the contract not be able to be cancelled.

First, this issue will be examined from the perspective of the buyer.  Real estate contracts typically contain conditions, such as the property will appraise  for at least the contract price, that the buyer will obtain a mortgage commitment, board approval will be issued if the purchase involves a cooperative apartment and there will not be an insurmountable title issue.  If any of these conditions are not met and the buyer’s attorney notifies the seller’s attorney within the timeframe required by the contract, the contract can be legally cancelled and the downpayment will be refunded to the buyer.

At times, a buyer attempts to use issues that should have been addressed during the pre-contract due diligence period to cancel the contract.  Most contracts state that the buyer has conducted all due diligence and inspections of the property before the contract is signed.  The buyer’s concerns about such issues as property conditions, the amount of real estate taxes, or monthly carrying costs of a cooperative or condominium unit must be raised before the contract is signed and are not causes to unravel the contract.  A buyer cannot cancel the contract merely because he no longer wants the property or thinks he cannot afford it.

maskOur readers may be pleased to hear that mask mandates are falling like dominoes throughout the area served by our attorneys.  This newfound attitude heralds a time of optimism.  However, the scars created by the COVID era remain, particularly with respect to commercial leases.  This post will examine some typical provisions in commercial leases that should be reconsidered and negotiated in light of changing times.

In many commercial leases, landlords will prefer strict definitions as to use of the premises and signage permitted on the premises.  For instance, if the tenant is a fitness facility, the landlord may draft the use clause very narrowly and identify the permitted use as a boxing fitness studio.  Should the tenant have difficulty in operating the location, he will not necessarily be able to sublet to another tenant unless the use is the same.  If this particular tenant could not operate a boxing fitness studio during a pandemic, how will he find another tenant who wants to use the space for the same narrow purpose?  As such, an experienced attorney  will ask the landlord to broaden the permitted use in the lease to fitness studio or any lawful use.

Flexibility  is also required with respect to alcohol sales, which may be restricted in a lease.  As our readers may recall, during the pandemic struggling restaurants were permitted to sell alcoholic beverages for takeout.  This was a lifeline for such businesses and should not be prohibited by a lease, which should permit alcohol sales in accordance with current law and not be further restricted by a landlord.  The open restaurants program  in New York City permitted restaurants to operate supplemental space on the sidewalk or in the street appurtenant to the restaurant.  Lease provisions requiring a tenant to keep the sidewalk clear should be modified to permit use as may be permitted by an open restaurant program.

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.

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