New York Real Estate Lawyers Blog

September 12, 2014

Estate Proceedings for Property Located “Elsewhere”

People are leading increasingly complicated lives, in that they spend their time in several locales, some of which may not be their place of residence. If a person is fortunate, they may develop an affection for a particular area and buy a second home in such area. Likewise, they may inherit a beloved family home in a location where they do not live. When such a person passes away, the disposition of all of their property, no matter where located, must be addressed. The question to be explored in this blog post is which Court has jurisdiction over which property.

If a person dies with a Will, the legal proceeding would be entitled a Probate proceeding. If there is no Will, the legal proceeding is called an Administration proceeding. How does a person know where a Probate or Administration proceeding should be brought if a person owned property and even lived in several locations?

Venue is the legal term for the proper location of a legal proceeding. The Surrogate’s Court Procedure Act defines venue as the county of domicile at the time of death. Generally, proper venue for an estate proceeding will be the county identified as the residence of the deceased on the death certificate. Common sense rules also dictate. If a person owned a home, worked, socialized, or paid taxes in a particular area, then venue would be proper in that county and the estate proceeding should be filed in the same county.

September 5, 2014

Standards for Purchasers of New York Cooperative Apartments

By Weiss & Weiss

Our readers may be familiar with a cooperative apartment building located in Manhattan by the name of River House. This building is known not only for its distinctive classic architecture and regal location, but also by its stringent admissions standards for purchasers. It has been well known throughout the New York real estate community that the River House has declined the purchase applications of numerous famous people and persons with seemingly substantial assets. This culture has resulted in apartments being listed for sale for years, because potential purchasers cannot get approved by the board. Overly rigorous standards hurt all residents, as apartments will not sell as readily. The New York Times reported that the River House has recently relaxed some of its admissions standards.

As we have discussed in a previous blog post , a purchase of a cooperative apartment in New York is subject to the approval of the board of directors. If the board declines the purchase, it will not proceed. Legally, a board can reject a purchaser for any reason, so long as the denial is not for discriminatory reasons. In another blog post , we advise cooperative clients to treat all shareholders equally.

The governing case on the matter of decisions by cooperative boards is Levandusky v. One Fifth Avenue Apartment Corp. This case stands for the principle that cooperative boards, like corporations, are governed by the business judgment rule. So long as there is a legitimate purpose to the decision of a cooperative board and such decision is beneficial to the shareholders as a whole, the decision of the board will stand and will not be subject to judicial review. Boards acting in good faith and in the exercise of their honest judgment are insulated from judicial review of their decision. The business judgment rule is limited by arbitrary or malicious acts of board members, favoritism and discrimination. For instance, a board can legally decline a purchaser if it does not like the person, but cannot legally decline the applicant because they want to retaliate against a seller that they do not like, or because the candidate happens to be Hispanic. Of course, proving that the denial was based predominantly upon an illegal reason may be difficult.

August 11, 2014

Beware the Evil Stepmother

By Weiss & Weiss

Evil stepmothers are not only found in popular culture, as epitomized in Cinderella . Such persons are commonly the subject of events reported by the New York press. Estate conflicts often arise between children of a prior marriage and a more current spouse. Such persons inherently have potentially differing interests. The new spouse may have been attracted to the parent because of the parent’s financial success. The child may be resentful that their parent has decided to remarry.

For instance, Casey Kasem was a beloved radio personality whose end of life was dominated by a battle between his children from a prior marriage and his second wife. Most of the disputes between the parties involved end of life care as well as an unsavory argument over burial arrangements. Mr. Kasem did the prudent thing and had the equivalent of a living will and health care proxy prepared for him, instructing his caretakers to remove life support mechanisms if his prognosis was such that he would not survive on his own. Because his second wife refused to follow his written instructions, his daughters had to petition to a Court for an order requiring the medical facility to respect his wishes. In order to make the best effort to allow for last wishes to be observed, we suggest that our clients allow us to prepare a living will and health care proxy for them and to make same available to medical providers. These documents can instruct that life sustaining mechanisms be left on or terminated, as our client desires. Further, making funeral arrangements and pre-paying for same is another way to make sure that one’s end of life wishes will be respected.

The New York Post also recently reported a dispute between a famous Broadway producer’s son from a prior marriage, his grandchildren, and his fifth wife. The fifth wife allegedly depleted the estate by spending large sums on herself and for purposes that suited her prior to her husband’s death. If the money was held in a joint account with her husband, this spending, even if excessive by some standards, is legal. The Broadway producer should not have had joint assets with his fifth wife. Another method to be used to protect and preserve the assets for the intended beneficiaries would have been to establish a trust, preferably an inter vivos trust in this instance, with anyone besides the stepmother being the trustee. We have written extensively on trusts in prior blog posts . Certainly, one of these types of trusts would have protected assets for the grandchildren.

August 4, 2014

Elmo (and others) in Times Square: The Legal Issues

By Weiss & Weiss

In the news are stories concerning costumed characters in Times Square. For those who have not visited the center of New York City lately, individuals dressed up as Elmo, Super Mario, and Spider-Man, and others have been congregating in Times Square. They entertain tourists, and many people like to have their pictures taken with them. Unfortunately, some of these “characters” have become aggressive, demanding money from tourists for having their photos taken, and recently, “Spider-Man” has been arrested for an altercation with a New York City police officer.

New York City officials are now considering their options regarding licensing these individuals and imposing other legal restrictions on them. Legally, there are several issues in play. The right of any individual to congregate in a public place and to ask others for money may be protected by the First Amendment to the United States Constitution, which protects freedom of speech and freedom of assembly from governmental restriction. Of course, there may be reasonable limitations placed on such freedoms, especially where it may interfere with the safety of others. Previous court decisions in New York have ruled that the right to ask others for money in a public place constitutes freedom of speech and cannot be considered criminal behavior.

Another legal issue is the whether the right to appear in public as certain characters from fiction is an infringement upon the owners of those characters. The legal rights to both the names and appearances of many of the characters appearing in Times Square, such as Elmo and Spider-Man, are owned by large corporations. The costumes, names, and persona of these characters are protected by legal trademarks. This means that no one can generally use these characters for commercial purposes without the consent of the trademark holder. Such consent usually also involves payment of royalties to the trademark owner.

July 28, 2014

Keeping Landlord-Tenant Disputes Under Control

By Weiss & Weiss

Recently in the news is the rather gruesome story of a woman who was murdered and dismembered. Her body parts were discovered in Nassau and Suffolk Counties. Her neighbor was arrested for her murder and is being held without bail. According to the news story, the root of the conflict between the two women appears to have been a landlord-tenant dispute.

The accused murderer, Leah Cuevas, was pretending to be the landlord of the building in which the two women lived, after the actual owner passed away. Ms. Cuevas then attempted to collect the rent from the building’s tenants, and when fellow tenant Chinelle LaToya Thompson Browne refused to pay, she was allegedly murdered by Ms. Cuevas. Of course, most landlord-tenant conflicts do not end in this manner. This blog post will attempt to discuss the legal issues involved, although, as our firm does not generally practice criminal law, we will leave the more graphic issues to the criminal courts.

Often, a situation can arise where a person claims to be the owner and/or landlord of a house or apartment building and demands rent from the tenants. This can happen where the original landlord passes away without a will, or where the building is being foreclosed by a lender. There may be occurrences where a landlord cannot meet the carrying charges on a building, such as the mortgage and utilities, and simply “walks away” from their ownership. If the ownership is in a corporate name, the landlord may not be personally liable for the building’s debts, and does not dispute any foreclosure proceeding that may occur.

July 21, 2014

Access to Building Services in Rental Units in New York

By Weiss & Weiss

A recent news story regarding affordable housing in New York may be of interest to readers of our blog. New York City’s Department of Housing Preservation and Development (HPD) approved a separate entrance in a proposed new building containing affordable housing units. The building would therefore have two entrances (it is located on a corner lot), one for the luxury units, and one for low-income units that would comprise 55 of the 219 proposed units.

Of course, many people are outraged by this “poor door,” arguing that it imposes a stigma on the low-income renters in the building. Others may argue that separate entrances should be allowed as the price for the builder to include these low-income units, which may not have otherwise been part of the proposed project. Including these low-income units in the project allows the builder to construct an edifice larger than that which would have been allowed if the building only contained luxury units. It also entitles the developer to certain tax breaks for providing “affordable housing” to the residents of New York City.

The issue of whether all residents of communal housing, such as an apartment building, are entitled to share in all of the building’s amenities can create additional legal challenges. A building in the Chelsea neighborhood of Manhattan has an indoor swimming pool, a rare sight in Manhattan. There are several buildings with access to the pool, known as London Terrance Towers and London Terrace Gardens. However, these buildings contain co-op apartments, which are owner-occupied, as well as rent-stabilized units, which are not. Under an expiring agreement, between the landlord of the Gardens buildings and the cooperative corporation, the renters were allowed to use the pool.

July 10, 2014

Buyouts Between Landlords and Tenants in New York

By Weiss & Weiss

A recent article in the New York Times discusses the issue of landlords making cash offers to “buy out” tenants of their rent regulated tenancies. Our firm has handled these situations, representing both landlords and tenants in different transactions regarding such buyouts.

The reason behind such offers is the rent regulation system currently in place in New York City. Many, but not all, apartments in New York are subject to rent regulation. Rent regulation applies to apartments renting below a certain amount, but does not apply to rentals of a condominium or cooperative unit by its owner. Whether an apartment may be subject to rent regulation is a complicated issue and can be the subject of additional legal proceedings, with which our firm also has extensive experience.

Once an apartment is subject to rent regulation, a tenant residing therein has certain legal rights regarding their tenancy. The first right is the amount of the rent paid by the tenant. This amount is determined by an extremely complicated formula, in which the following factors are taken into account: the rent paid by the prior tenant, increased by a “vacancy allowance,” plus increases may be allowed for improvements made by the landlord to the apartment, such as the installation of new appliances, new windows, and so forth. Renewal leases are subject to particular limited on rent increases determined annually by the Rent Guidelines Board.

July 4, 2014

Wishing Our Readers a Happy 4th of July

By Weiss & Weiss

June 19, 2014

Trademarks and the Washington Redskins Decision

By Weiss & Weiss

Recently in the news is a decision by the United States Trademark Trial and Appeal Board concerning the registration of the trademark for the Washington Redskins football team. Longtime readers of this blog will recall that a prior post explained the difference between copyrights and trademarks. To summarize, a trademark is legal protection for a trade or business name used to identify goods and services in interstate commerce. To obtain such protection, one generally applies to the United States Patent and Trademark Office in Washington, D.C. The applicable procedure is one which can be done online. Our attorneys are familiar with the application process and can assist potential applicants.

Once the application is submitted, an examiner at the United States Patent and Trademark Office will review the proposed trademark. They will check as to whether the proposed mark is “confusingly similar” to any prior registered mark, and may deny the application if it is. Other technical issues may also be raised by the trademark examiner.

If the applicant has an issue with the decision of the trademark examiner, then the trademark examiner’s decision can be appealed to the United States Trademark Trial and Appeal Board (TTAB). Any such appeal would be heard by a panel of three Administrative Trademark Judges. Each Judge will then vote on the appeal, with the majority becoming the decision of the TTAB in a particular case.

May 30, 2014

Our Guide on How to Conduct Cooperative Board of Directors Meetings

By Weiss & Weiss

coop board meeting.jpg In a prior blog post , we described how annual cooperative shareholder meetings should be conducted. Now that the cooperative’s Board of Directors is properly elected and in place, the business of the cooperative should begin with the holding of a meeting of the Board and electing officers. This blog post will describe how to conduct regular Board of Director meetings in a cooperative.

It is not unusual for By-Laws to require a newly elected Board to meet immediately after the annual shareholders meeting, even if such a meeting has not been noticed. Otherwise, By-Laws may require advance notice of the Board meeting. While Board meeting notices usually do not need to specify an agenda, we recommend that an agenda be circulated prior to the meeting so that those in attendance are prepared for the discussion of cooperative business and are not surprised by any of the topics.

At the first Board meeting, it is prudent to elect the officers, such as the President, Vice-President, Secretary and Treasurer. The By-Laws will identify those officers to be elected for a particular cooperative as well as their roles. Review of the By-Laws must be made to confirm the quorum (the minimum number required to hold a valid meeting) required for the Board meeting, whether a majority or other percentage of directors. Once it is determined that there is a quorum present at the Board meeting, the By-Laws should be consulted to note voting requirements. Does a mere majority vote or a higher percentage allow for the passage of resolutions discussed? Particular matters, such as enacting additional fees like a flip tax, may require a vote of more than a majority, such as two-thirds. A flip tax is a fee paid to the cooperative at a closing by the seller and may be calculated as a flat amount, a percentage of the sales price, a percentage of the net profit of the sale, or by assigning a particular number of dollars per share owned by the seller. A flip tax is intended to enhance the account balance of the cooperative and share some of the seller’s sales proceeds with the building. Since flip taxes comprise an additional fee, it is not unusual for voting to require more than a majority or for such a matter to be considered by all shareholders, instead of merely the Board.