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The Advantages of Creating a Trust as Part of Your New York Estate Plan

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As COVID-19 continues to ravage the nation, it’s more important than ever to create an estate plan if you haven’t or update one that is outdated. Shockingly, just a few years ago close to 72 percent of Americans had either no will or an out-of-date one. Especially in the current climate, it’s important to prepare for worst case scenarios, create protections for your loved ones, and even benefit you while you’re still alive. Though New Yorkers are often more familiar with a last will and testament to pass assets to beneficiaries, trusts often provide more benefits and still accomplish the same purpose behind creating a will. 

What is a Trust?

Living trusts are legal constructs that can be alternatives to a will, creating a way to move assets of an estate over to beneficiaries. They can be irrevocable or revocable, but the bottom line is they are often advantageous for tax purposes and keep assets in the trust out of probate and away from prying eyes.

Benefits of Creating a Trust in New York

Avoiding Probate

Wills require that every asset listed in them move through a probate court upon the creator’s death. Probate can be costly, often drag on for months or even years, and their speed is largely dependent upon how many matters the court must decide on as the process progresses. Assets placed in trusts, however, allow you to skip this process and pass the assets inside to their intended beneficiaries more quickly.

Privacy Considerations

Probate is a court-administered process, which means that all documents pertaining to the will – the creator’s assets, accountings, records of their income, gains and losses – are entered into the public records and can be located by anyone curious about the proceedings. Trusts allow you to keep your estate’s details away from prying eyes, and can save beneficiaries from potential burglaries and scam attempts by criminals who could otherwise find out through public records that your son just inherited $3 million dollars from your estate through your will. 

Planning Ahead

Wills are designed to be utilized upon your death – they serve to give you security that your beneficiaries will receive the assets you designated for them at the time the will is made. Only you can change your will. However, people often lose mental faculties or become incapacitated in advanced age. Trusts, on the other hand, allow you to designate a successor trustee should you be unable to continue managing your trust. They will have the duty to see the trust is managed as you intended. 

Speak to a New York Estate Lawyer

Especially in the world today, it’s important that you have a plan for your estate. Trusts are often the best plan to do so; however, trusts can be complicated, and there are a number of different types. One may be more beneficial to accomplish your wishes. The talented New York trust and estate attorneys at MOWK Law can help you review your goals, answer your questions, find a plan that gives your estate maximum protection, and create the necessary documents for you. Contact us today to learn more!

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What to Know About New York’s Updated Guidelines for Residential Real Estate Sales Showings During Coronavirus

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As New York and the rest of the country have begun slowly emerging from stay at home orders in place to protect against the Coronavirus, real estate professionals are looking towards updating the way they conduct elements of residential real estate sales transactions. The Real Estate Board of New York (REBNY) has issued recommendations for New York City real estate agents based on guidance from New York State and City Health Departments and the CDC covering nearly every aspect of sales transactions. Below is a brief overview of what you may see in the course of your next residential real estate purchase. 

Accessing the Property In-Person

If in-person showings are imminent, not only are agents to abide by building and management protocols for showings, it’s also recommended they obtain signed limitation of liability forms from anyone visiting the property in-person. The form advises of potential COVID-19 exposure risks and requires the signatory to assume the risk of visiting the property. 

General New York Real Estate Showing Precautions

Agents should require everyone attending an in-person showing to complete a health screening questionnaire to determine if anyone:

  • Has received a positive COVID-19 test in the last 14 days
  • Experienced any COVID-19 symptoms in the last 14 days
  • Knowingly been in close contact with anyone who has tested positive for or had symptoms of COVID-19 in the last 14 days

To comply with Fair Housing regulations, any agent taking this step must uniformly implement it with everyone prior to all in-person showings.

Not only are social distancing guidelines to be followed at all times, agents showing any spaces too small to conform with the 6-foot guidelines should schedule additional showings to accommodate all parties. 

Seller’s Agent Requirements and Guidelines

Per the CDC and other health authorities, there are some protocols a seller’s agent must comply with when in-person showings occur:

  • No handshakes.
  • The seller’s agent must clean and disinfect all frequently touched surfaces and areas before and after each appointment
  • The seller’s agent must also provide hand sanitizer or soap and paper towels to all visitors on arrival. 
  • The seller’s agent may not permit a buyer or their agent to touch anything in the property except essential surfaces such as handrails. 
  • The seller’s agent should, when possible, open windows to introduce fresh air.
  • The seller’s agent, along with all other parties, must wear face coverings. Failure to bring a face covering may be cause for cancellation or postponing the showing without penalty or prejudice.
  • Anyone may cancel without penalty or prejudice if they are presenting COVID-19 or flu-like symptoms. 

New York Real Estate Attorney

Buying residential real estate in New York was complicated enough prior to the onset of the Coronavirus pandemic. The alternation of the showing and sales process has made it difficult to keep up with what is expected of you not only as a potential seller or purchaser, but as a real estate agent as well. If you are unsure of your rights, responsibilities, or the process of residential real estate sales in the current climate, the experienced New York real estate attorneys at MOWK Law are here to answer your questions. We can evaluate your unique situation, provide counsel on the appropriate course of action, and look out for your best interests. Contact us today to learn more and get started. 

What Does New York’s Extended Eviction Ban Mean for Tenants?

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As the coronavirus pandemic drags on across the country, initial orders issued by New York and other states inch closer to expiration – including moratoriums on evictions of tenants unable to pay their rent. To alleviate concerns of renters and lessees in New York, Governor Andrew Cuomo recently announced he was extending his March 20 eviction moratorium order through August. However, the extension may not change what might happen to some delinquent tenants past the order’s original June 20th expiration date. 

Who Qualifies? 

The extended eviction moratorium announced by the Governor applies only to New York tenants who are “eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.” The original moratorium granted protection to all commercial and residential tenants. However, a “financial hardship” is not specifically defined and no parameters have been set as to who qualify for this protection as of now.

Undocumented Immigrant Status

Some people worry that the new standard for extended protection may negatively impact individuals with undocumented immigration status. There is a question of whether a tenant who is brought to court will willingly demonstrate whether they were impacted and reveal their immigration status to help their credibility with the court – especially knowing that some landlords in New York City recently have called Immigration and Customs Enforcement (ICE) upon finding out their status and their inability to pay rent or abide by the terms of their existing lease.

Tenants Who Do Not Qualify

For other tenants, they are not protected from a landlord’s initiation of a holdover proceeding. This is an action filed with the court by a landlord who wants to evict you and is demanding possession of the apartment. This follows either a notice to terminate or notice to cure, not necessarily for failure to pay rent. Even though there may be a holdover proceeding, the only one who has the power to order you to move is the court. However, until housing courts are able to reopen landlords are still not able to commence a new eviction proceeding.

New York Real Estate Attorney

Though many people will qualify for extra protections from eviction during the pandemic, some will not and may need additional help. Many tenants may not be sure if the extension applies to them, as many parts of the new order are unclear, and some terms are not explicitly defined. If you have questions about how or if the eviction ban extension applies to you, or if you need help dealing with a problematic landlord, the experienced New York real estate attorneys at MOWK Law can help. We are here to help evaluate the situation, fight for your rights, and work towards the best resolution possible. Contact us today with your questions.

Can I Break My Lease in New York Over Coronavirus Concerns?

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Due to concerns over the coronavirus pandemic and mounting financial difficulties in places where rent is high but unemployment is rampant, many renters in New York City and other densely populated cities are wondering if they can break their lease and move to more remote areas or move in with family. Some landlords are accommodating tenant requests, but if your landlord will not let you break your lease or have someone take it over you may wonder what your options are. 

Consequences of Breaking a Lease

If you decide the best solution for you is to break your lease, you are responsible for the balance of rent that remains on the property under the lease until a new tenant moves in. Though landlords must make a good faith effort to find another renter for the property, the shelter in place orders currently in effect mean it is likely much more difficult than normal to find a replacement because less people are looking to rent apartments in heavily populated cities. 

If you do break your lease, your landlord may file a lawsuit when the courts reopen for the balance of the lease. It might be possible to negotiate a settlement after the suit begins and only pay a portion of what you owe. 

Alternative Solutions

If you want to get out of your lease but do not want to break it right away, you might be able to pursue alternative solutions with your landlord directly to see if you can reach a mutually agreeable solution. It’s advisable for you to first speak with your landlord to see if you can reach a deal that works for both of you. It may be helpful if you can figure out an amount that you’re comfortable giving up or can afford to part with as an alternative to breaking your lease. Some landlords might be willing to let you out of your lease if you forfeit your security deposit or rent for a month or two as a compromise, freeing you up to leave without facing legal action. 

New York Real Estate Attorney

Renters in New York right now are facing difficult decisions because of financial difficulties or concerns over staying healthy during a pandemic in a crowded city. In order to make sure you’re exploring all your options  and making the wisest possible decisions for your situation, contact the experienced New York real estate attorneys at MOWK Law today. We can help you exercise your rights so you can try to make the best of an uncertain, unfortunate situation. Contact us today to get your questions answered and make sure someone is looking out for your interests.  

Strategies to Create an Estate Plan During Covid-19

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The ongoing pandemic has caused many people to start thinking about putting their affairs in order if they did not already have an estate plan in place. There is no better time than now to get your estate plan together and up to date. As people move to finalize documents they may have avoided signing previously or start the process of planning, creative solutions are emerging to get necessary estate planning documents executed in creative ways to stay safe during the coronavirus.

Remote Estate Planning 

Thanks to MOWK Law attorneys working remotely, it’s still possible to create, change, or finalize an estate plan without physically meeting with an attorney. Phone calls, emails, delivery services, and video conferencing can be utilized to draw up a plan, exchange documents for review, or deliver documents. Keep in mind that there are a lot of estate planning tools that you and your loved ones can benefit from now.

Whether you have an estate plan that needs updating or you have never put anything formal together, we are here and available to make sure your wishes are executed.

Remote Notarization in New York

Currently, Governor Cuomo has an executive order in place in certain situations permitting notarization to take place using audio-video technology rather than physical appearance between the necessary parties. The current requirements for the document signer and Notary are as follows:

  • If the Notary doesn’t personally know the signer, must see a valid ID over video conference
  • There must be direct interaction over video conference between signer and Notary
  • The signer must affirmatively represent they are physically in the State of New York
  • The signer must fax or email a legal copy of the signed document to the Notary the same day it’s signed
  • After notarizing the document, the Notary may transmit the document back to the signer

It’s a good idea to consult with a skilled estate lawyer to understand if your documents need to be notarized and how best to complete the process if it is necessary for your particular estate plan.

Speak to a New York Estate Lawyer

Though contemplating worst-case scenarios and getting your estate in order is often not the most heartwarming situation to consider, it’s important that you have a plan for your estate to keep it from passing through probate and ensure your wishes are carried out promptly. Our talented trust and estate attorneys at MOWK Law can help you make the best decision and come up with a plan that gives your estate maximum protection. Contact us today to learn more!

Do New York Tenants Have Special Rights During the Coronavirus Pandemic?

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With the current state of the Covid-19 pandemic in New York, many people with landlords or mortgages face reduced hours, unemployment, and financial uncertainty. To mitigate the fear of losing your home as a tenant from of abiding by the current shelter at home guidelines, New York has issued orders changing the usual laws related to foreclosures, evictions, and tenant rights. 

Current New York Coronavirus Executive Orders

  • Until at least June 19, 2020, evictions are suspended. Courts also will not accept any new eviction or foreclosure cases. 
  • No Sheriffs, Marshals, or Constables are permitted to perform evictions due to the New York Governor’s Executive Order – even if a warrant for eviction exists. 
  • No landlord is permitted to engage or participate in rent gouging by increasing your rent to capitalize on the current crisis. If you are currently in a lease, your landlord can’t increase your rent until the lease expires. If you are either in a rent-controlled or rent-stabilized property, your landlord is limited in how much they can increase your rent. Currently, the rate is a 1.5 percent increase on a 1 year renewal and 2.5 percent increase on a 2 year renewal. 
  • Month-to-month tenants or tenants at market rate whose lease is expiring must be provided with advance notice in writing if your rent will increase more than 5 percent. You must receive 90 days notice if you have lived in your apartment for 2 years or more or have a 2 year lease. You must have 60 days notice if you have lived in your apartment for more than 1, but less than 2 years. You must have 30 days notice if you have rented or leased for less than 1 year. 
  • Your landlord may not charge you increased rent – even with proper advance notice – unless you take an affirmative step such as paying the increase or signing a new lease. If you do not pay, your landlord must go to court to evict you, but currently there is a moratorium on their ability to do so. 
  • Landlords may not withhold essential services such as heat or hot water due to a failure to pay rent. 
  • Landlords may not take any action with the intention of forcing you to leave your home or sacrifice your legal rights, such as interfering with your privacy or your quiet enjoyment of your home. They also may not threaten to change locks or engage in disruptive construction in the building intended to interfere with your health, safety, or use of your home. 
  • Landlords may not engage in discrimination against or evictions proceedings with a tenant because they or someone they live with contracted or has had COVID-19 or because the landlord believes they have had the virus. This includes posting notices identifying a specific individual. 

New York Real Estate AttorneyEven though there are government resources available to help with landlords who do not abide by the current executive orders, in some situations extra help is needed. If the relationship is not going as planned, the experienced New York real estate attorneys at MOWK Law can help you deal with any issues, protect your home and your rights, and look out for your best interests. Contact us today with your questions.

Tenant Eviction

How Do Landlords Properly Notify Tenants They Are Being Evicted in New York City?

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Everyone knows New York City is a town predominantly filled with residents who rent or lease the place they live. However, not everyone knows what happens when a landlord decides they’re ready to be rid of a problematic tenant. Recent high-profile cases of refusal to pay rent in the city put a spotlight on the issue of eviction, when it’s permissible, and how the process works. Here is an overview of New York’s eviction rules and procedures in typical landlord-tenant relationships.

When is Eviction Allowed?

New York landlords are permitted to evict tenants for a number of different reasons. However, before this can happen landlords must terminate the tenancy by giving the tenant written notice that meets the city’s requirements. In New York City, this means landlords must include the reason for termination, the date the tenant must move – but no less than 30 days from the date of service, and that an eviction lawsuit will be filed if the tenant doesn’t comply. If a tenant doesn’t comply, the landlord can proceed with their eviction lawsuit in a New York court.

Termination with Cause

If a landlord wants their tenant to move out before the rental term is finished, they must have cause. This can include nonpayment of rent or violating the terms of their lease or rental agreement. The type of notice given depends on the reason for eviction.

                Fourteen Day Notice to Quit or Pay Rent

If a tenant doesn’t pay rent as agreed, they may receive one of these notices informing them they must pay rent in full within 14 days or move out. The landlord can pursue an eviction lawsuit in court after 14 days if the tenant has neither paid nor moved off the property.

                Notice to Cure and Notice of Termination

If the landlord believes the tenant violated terms of the lease, they must give two types of notice. The first is a notice to cure informing the tenant they have 10 days to correct the violation. If the violation isn’t corrected, the landlord may provide a notice of termination. If it is corrected, the landlord can take no further steps. The second notice is a notice of termination, given when the tenant doesn’t comply with a notice to cure. This informs the tenant they have no less than 30 days to move out, and if they don’t comply the landlord can begin eviction proceedings.

Termination Without Cause

With no cause, a landlord must wait until the lease ends before asking the tenant to vacate.

                Month to Month Rental

If the tenant had a month to month agreement, tenants who occupied the property for at least one year have 30 days’ notice. Tenants between one and two years receive 60 days’ notice, and tenants of over two years receive 90 days’ notice.

                Fixed Term Lease

A fixed term tenant cannot have their tenancy terminated before the term ends without cause. After the term ends, no notice to move is required from the landlord unless the lease terms require it. Unless the tenant asked for a lease renewal, the landlord is generally in the right expecting the tenant to have left the rental by the term’s end.

COVID-19 & New York Evictions

What impact does the coronavirus have on New York evictions? Like many cities across the US, there may be a temporary inability for tenants to meet rent requirements during this unique time. Renters make-up nearly 2/3 of the city of New York’s occupancy and currently there is a statewide moratorium on commercial and residential evictions until June 20 (at least).

New York Real Estate Attorney

Lease and rental agreements are in place to set out the terms of a landlord-tenant relationship and prevent unwanted surprises. If the relationship is not going as planned or the agreement has not been upheld, the experienced New York real estate attorneys at MOWK Law can help you deal with any issues and look out for your best interests. And if you have questions about your commercial or residential lease during or after the Covid-19 moratorium, Contact us today with your questions.

Making the Best of a Bad Situation with Chapter 11 Bankruptcy in New York

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With all the economic uncertainties, business disruptions, and massive layoffs happening right now, it’s common for businesses, corporations, and individuals to seek a solution for existing debt and a sudden lack of income. The full scope of COVID-19’s impact is not yet clear, but extensive quarantines, social distancing practices, and business closures have already hugely impacted bank accounts, financial markets, and economies worldwide. There are many advantages to a Chapter 11 bankruptcy and filing should be something struggling companies should  consider exercising in order to keep employees, preserve the value of their business, and potentially avoid shuttering for good. 

What Does Chapter 11 Do for Existing Debt Payments?

Chapter 11 bankruptcy is a way for a debtor to reorganize their assets, debts, and business operations. A reorganization bankruptcy allows businesses and others in debt an automatic stay under Bankruptcy Code section 362. Creditors may no longer initiate or continue litigation efforts for judgments, begin or continue debt collection including repossession efforts, enforce liens and pursue foreclosure among other activities. This allows filers the chance to stretch out certain creditor payments for a time so they can become more financially stable once again.

Maintaining Equity Interests

Business owners filing Chapter 11 may also be able to keep a large part or all of their equity interests in their business and keep operating the business while a reorganization plan comes together and through its confirmation. 

Protection from Unsecured Creditors

Under Section 365 of the Bankruptcy Code, the entity filing Chapter 11 may reject agreements, assume contracts, and assign contracts subject to outstanding defaults being cured. This means that any counterpart to these agreements may be left as an unsecured creditor. 

Financing Options

Debtor in Possession financing – potentially available to companies in crisis – may be an appealing option to help bail out flailing businesses. Lenders offering DIP financing are both incentivized and protected under Chapter 11 to enter into these agreements. It is common to see both desirable interest rates offered as well as giving the lender super-priority to seek payments from the bankruptcy before almost all other creditors in an effort to motivate this type of financial help being given.

Appealing Asset Liquidation Conditions

The United States Bankruptcy Code also grants debtors the ability in a Chapter 11 to sell assets without the transfers being burdened with liabilities such as liens, encumbrances, and claims. This provides a chance to sell assets that otherwise might not be transferrable or appealing due to the burdens that come with them. Not only may this help a distressed company, it offers reassurance of safety from successor liability claims for buyers and may incentivize them to make a purchase they otherwise would not. 

New York Chapter 11 Bankruptcy LawyerWhen faced with financial hardship and uncertainty about the future, it’s important for business owners to be aware of and consider the options available to them under Chapter 11. Not only can the move allow businesses and corporations to continue operating to the benefit of their clients and their employees, it can potentially allow businesses that depend of their payments of debts owed to avoid financial crisis and a bankruptcy filing of their own. If you have questions about your options or want to plan for your financial future, speak with the New York bankruptcy lawyers at MOWK Law sooner rather than later. Contact us today with your questions to get started.

Force Majeure Defenses to a Contract in New York

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When negotiating a business contract, smart companies try to include all possible defenses in the contractual language to excuse nonperformance through force majeure clauses. In situations such as the unexpected outbreak of the coronavirus (COVID-19), companies find themselves unable to do business as usual, produce as promised, or deliver on agreed upon deadlines. New York’s mandated shelter in place orders for non-essential workers and voluntary self-quarantine for essential workers showing symptoms of the virus or exposed to it have put businesses’ abilities to perform to the test. Due to this, businesses are examining whether they can excuse performance under force majeure either temporarily or permanently. 

What is Force Majeure?

Force majeure is a provision included in a contract that excuses performance of obligations by either one or all parties if circumstances out of the parties’ control arise, making it impossible or impractical to perform on contractual obligations. It’s typical to see clauses enumerating force majeure events such as:

  • Strikes or labor disputes,
  • Acts of terror, wars, and epidemics,
  • Acts of God including acts of nature like earthquakes and fires or weather events such as floods and hurricanes, and 
  • Government actions such as condemnation or law changes.

Generally, force majeure doesn’t include economic hardship, but the language of the specific contract at issue will decide if the clause may be invoked as an excuse for nonperformance. 

New York Force Majeure Requirements

When it comes to impossibility or impracticability of performance due to coronavirus, New York has specific standards to evaluate. To invoke force majeure, the specific event must generally be listed in the contractual clause. There are a few possibilities invoke the clause.

Epidemics and Pandemics

The World Health Organization has labeled coronavirus a pandemic. If a pandemic is listed in the clause, the nonperforming party may claim force majeure applies. However, some clauses choose the phrase epidemic, so it would be up to the nonperforming party to argue coronavirus still falls under that definition and nonperformance is excused. 

Government Action

If, however, neither pandemic nor epidemic were included in a force majeure clause, the nonperforming party may argue coronavirus is covered by the clause of “government action” in that the State of New York has mandated a lockdown to prevent further coronavirus cases. 

Foreseeability

New York further requires that even if a force majeure event included in the contract took place, the event was unforeseen – an argument likely to succeed in the case of coronavirus’ sudden, explosive spread. Further, the nonperforming party has to try to perform their duties even after the event occurred.  

New York Civil Litigation Lawyer

Creating a contract is an important event both for both a business and any other parties to the contract. It’s important to negotiate for as many protections as possible for your business, but it’s also important to fight for those protections when unforeseen circumstances make performing your obligations impossible. To have someone looking out for your best interests and fighting for your business in uncertain times, speak with the New York civil litigation lawyers at MOWK Law today. Contact us today with your questions—we are all working remotely and fully available to new and potential clients.

How Does the NBA’s Suspension of their Season Protect them from Lawsuit Liability?

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As COVID-19 (coronavirus) spreads, the New York Knicks, along with the rest of the NBA, decided to suspend its season until further notice after a player tested positive for the virus. Though public health is a top priority and of great concern, the decision is also a strategic and legal decision to curb liability from potential personal injury claims arising from premises liability in New York and beyond. 

What Does Premises Liability Mean?

In this case, the NBA has a legal duty not to act negligently. As an organization that contracts with companies operating large stadiums and arenas like Madison Square Garden to host basketball games, this means they have an obligation to keep guests and workers at these venues safe. Outside of open, obvious hazards, failure to take these steps makes them liable for injuries. 

Normally, courts won’t hold organizations and teams liable for injuries to spectators during sporting events; tickets bought by attendees normally disclaim liability, and attendees assume the risk of injuries that come with attending a basketball game. In other words, if you buy a courtside seat for a Knicks game, you assume the risk of injury that could happen if RJ Barrett plows into you chasing a loose ball – if that’s not acceptable to you, sit further away from the court.

Why Is Coronavirus Different for Personal Injury Claims?

Public health crises like coronavirus are completely different because they have no connection to the sport of basketball itself. It’s also true that it wasn’t foreseeable when tickets to the game were purchased. Even when tickets have broad disclaimers including language waiving liability for injuries or death “related in any way” to attendance at the game, there’s a strong possibility a judge might disagree and rule against the team and the league. 

The risk of coronavirus is in no way inherent to the game of basketball or watching a game in person. Additionally, an ordinary person – the standard used when arguing negligence in personal injury cases – who decided to buy a ticket and attend a game would probably expect the league would take dramatic measures if it became aware a player tested positive for COVID-19. This means that if the NBA and a team knew a player was infected but played games anyway, they could become liable for injuries and deaths that resulted later. The liability implications could be staggering, considering that in a 9 day span the infected player was present and involved in games in Cleveland, New York, Boston, Detroit, Toronto, and Salt Lake City.

New York Personal Injury Lawyers

If you have questions about personal injury liability or are looking for a top New York personal injury lawyer to help you get the compensation you deserve after an accident, contact the talented attorneys at MOWK Law today. We have the knowledge, resources, skill, and drive to make sure your best interests are looked after, you are protected, and you get the best result possible. Contact us today with your questions!