Category: Real Estate

Selling property in New York is a complex, multi-step process between buyer and seller. Real estate laws have given both parties legal responsibilities during the transaction and failure to comply with mandatory procedures and disclosures can result in costly legal penalties. One major responsibility of the seller is complying with mandatory disclosures New York sellers must make during the process, which we will examine in more detail.

General Housing Defect Disclosures

A New York seller is required to disclose known housing defects to the buyer in a real estate transaction. Omitting material facts about defects or knowingly making false statements to a buyer results in liability for damages if the omission or falsehood materially affects a buyer’s decision to purchase the property.

Even if the buyer doesn’t request the information, the seller must disclose it. The seller is not legally required to hire a home inspector, so the buyer has a duty to hire a home inspector when deciding whether to purchase the property. The disclosure statement reminds buyers it does not act as a guarantee or a warranty from the seller regarding the property’s condition.

A standard disclosure statement required by the Property Condition Disclosure Act (PCDA) typically addresses:

• General information including age and ownership;
• Mechanical systems and services such as water source, drainage, and utilities;
• Environmental information which covers issues including whether a property is located in a flood plain, if the property contains asbestos or fuel storage tanks, and whether there is knowledge that toxic substances were spilled, leaked, or released on the property; and
• Structural information including roof condition and whether smoke, fire, water, or insect damage are present.

Additional Lead Disclosure

In addition to general disclosure, an additional federal law requires a disclosure regarding lead paint. When selling a house constructed prior to 1978, a seller must comply with the Residential Lead-Based Pain Hazard Reduction Act of 1992, known as Title X. A seller must:

• Disclose all known lead-based paint and hazards on the property;
• Give buyers a designated EPA pamphlet;
• Give buyers a 10-day opportunity to test the home for lead;
• Include warning language in the contract and signed statements from all parties to the transaction verifying the proscribed requirements were met; and
• For compliance, keep signed acknowledgements for three years.

Failure to Disclose

If a seller fails to submit disclosure statements to the buyer, they buyer is owed a statutory fee of $500. Additionally, a seller can still be liable for failure to disclose to the buyer. If a willful failure to perform the disclosures required by the PCDA is found, a seller may be liable to the buyer for actual damages resulting from the defect.

New York Real Estate Attorney

Selling a home can be a complicated process, and to avoid liability and smoothly complete the transaction it’s critical to make sure every step is followed to the letter. Having the help of the experienced New York real estate attorneys at MOWK Law can make the process an easy one and ensure you are not left with any unpleasant (and costly) surprises when selling your home. Contact us today to get your questions answered and make sure the transaction goes exactly as planned.  

It seems like an unfair scenario; you own property in New York, and you are suddenly contacted by a representative of an state agency or department’s real estate office notifying you the government is planning to acquire your land whether you like it or not. You may wonder if this is legal and what steps you can take if the government is threatening to use eminent domain to take your property. Read on to understand more about the basics of eminent domain and your rights as a property owner.

What is Eminent Domain?

Eminent domain is a form of property condemnation. It’s the government’s right to take private property for a public purpose, also called a public use. Property rights are not limited to physical real estate such as a house or office – land, air, and water rights are also subject to eminent domain, and public use is defined broadly. A public park, low income housing, widening freeways, and even removing blight have been held to be valid. Though the government has great power to take your property, both the United States and New York Constitutions require the government pay you just compensation for your property.

Can I Dispute the Government?

If you believe your property isn’t necessary for the public purpose stated, you can appeal the determination with the appellate division of the Supreme Court in the county where the property sits. After a hearing and examining all facts and objections raised, the Court determines if a public use, benefit, or purpose is served by exercising eminent domain to acquire your property.

How Is Just Compensation Determined?

If New York exercises eminent domain on your property, they must pay you just compensation – usually considered its fair market value as of the date your property is acquired. Usually fair market value is the same amount as you would receive for willingly selling your property under current market conditions. If you and the government do not agree on valuation, appraisers are typically brought in during this negotiation process.

The government will provide an appraisal for their fair market value estimate and a list of any other benefits you will receive, but you may dispute this by filing a claim in Court. This process before the State Court of Claims will involve submission of appraisals and may even result in a trail for the Court to determine your damages.

New York Real Estate Lawyer

Property is a valuable investment, so it’s important to do everything in your power to protect its full value. If the government is threatening to use eminent domain to take your property, it’s important you speak to an experienced New York real estate lawyer at MOWK Law. We will help make sure your property is truly being taken for the right reasons, fight for you if it is not, and ensure you receive just compensation. We look forward to hearing from you!

This year, a new law took effect fundamentally altering housing regulations in New York. The Housing Stability and Tenant Protection Act extended protection to residential and commercial tenants alike. The law offers renters and residents of manufactured housing eviction protections, permanently closes gaps within the state’s rent-stabilization system and expands the system statewide. But what effect will the law have? Here are a few of the system’s major changes to be aware of:  

• Makes rent regulation laws permanent and extends their reach.
• Repeals vacancy and longevity bonuses. Previously, the vacancy bonus permitted landlords to collect up to a 20% rent increase when a rent-regulated unit became vacant. The longevity bonus permitted landlords of these same units to collect an additional increase if they hadn’t taken a vacancy increase in more than 8 years.
• Repeals “decontrol” statutes for high–rent and high-income units. Previously, these laws permitted such units, upon vacancy of the unit, to be deregulated once the rent had reached a maximum threshold.
• Strengthens statewide protections for tenants. Security deposits will be limited to one month’s rent. The law extends the eviction process to permit the tenant in question additional time to pay rent and to find a new residence. Additionally, landlords can not longer evict a tenant who has made a good-faith complaint regarding warranty of habitability violation.
• Reforms the overcharge complaints system and extends the “look-back” rule. The overcharge complaints system previously permitted landlords to commit fraud if a tenant took too long to complain. It changes the “look back” rule from 4 to 6 years, which extends the statute of limitations dictating the amount of time a tenant is permitted to claim an overcharge of rent by their landlord.
• Permits preferential rents to be permanent. Upon lease renewals, property owner can’t discontinue preferential rents for tenants. Once the tenant vacates the home, landlords can charge up to the full legal regulated rent only if the reason the tenant vacated was not due to the failure of the landlord to maintain the apartment.
• Creates protections for both manufactured-home and mobile home tenants. The Housing Stability and Tenant Protection Act strengthens protections against tenant eviction from manufactured and mobile home parks when the reason for an impending eviction is of changing the land’s use. In addition to this increased eviction protection, it also places limitations on rent increases and strengthens rent-to-own opportunities.

New York Real Estate Legal Help

It’s crucial to be aware of changes in housing laws, because the change in protections offered to tenants means landlords must be sure not to violate any of the updated rules or face potentially costly penalties. At the same time, tenants should be aware of their new rights to make sure they are not violated. The highly skilled attorneys at MOWK Law can help with New York residential and commercial real estate issues and advise on how to comply with the changing laws. Get in touch with us today to have your questions answered.

If you are selling property in New York, you may wonder what options you have if a buyer breaches the real estate contract with you. A breach means the buyer does not fulfill their obligations after they have made an offer on the property and you have accepted it, which created a contract. These cases can get contentious pretty fast which is why working with a New York real estate lawyer can help get things resolved in your favor. Common breaches of contract in New York real estate include:

• A buyer failing to obtain agreed-upon financing prior to the closing date, which is a common point on which most real estate contracts hinge;
• A buyer cannot complete the purchase because they have not sold their home prior to closing on the property in question;
• Failing to pay on time; and
• A buyer’s failure to properly deliver the deed of property.

If the real estate contract to purchase property is accompanied by the usually earnest money deposit equaling 10% of the purchase price, the circumstances of the breach will dictate if the buyer is entitled to a refund of the money. It is generally assumed a seller will retain the earnest money deposit if the buyer doesn’t uphold their end of the purchase agreement, but it’s best to avoid conflict and write these terms into the sales contract to make this a binding term.

If a buyer breaches and backs out of the contract, whether the buyer had a valid reason to breach determines if they get back their earnest money deposit. If a buyer simply changes their mind, they would likely forfeit their deposit; unlike a situation where they were denied proper financing and notified seller as provided under the terms of the contract.

As a seller, if the buyer breaches the real estate contract there are usually three remedies available to them:

• Filing a lawsuit for breach of contract;
• Keeping the initial earnest money deposit and subsequently terminating the contract; and
• Bringing a suit for specific performance.

If both buyer and seller believe they are entitled to the money after a breach, the seller can sue for breach of the real estate contract. However, it’s important to remember in most situations, the terms of the sales contract may place limitations on a seller’s options.

If a seller is ready, willing, and able to sell and the buyer defaults for reasons other than those permitted by the contract or contingency provisions, the seller can properly terminate the sales contract and keep the earnest money – usually even if the amount of the payment exceeds the seller’s damages from the buyer’s breach. The seller can sue and receive specific performance only if monetary damages will not adequately compensate them and their sales contract does not solely limit them to liquidated damages limited to the amount held in escrow. When suing for breach of contract, the seller will only receive monetary damages above the earnest money amount if the seller can show that after the buyer’s breach they were only able to sell the property for less than offered by the buyer.

New York Real Estate Lawyer

In a breach of contract situation and not sure what to do? Get in touch with a New York real estate lawyer at MOWK law to learn about your options and how we can help get things resolved quickly. We look forward to hearing from you!

If you have fallen behind on your house payments to a mortgage holder like a bank or finance company in New York, it’s common to wonder what you can expect if you are unable to get back on track repaying your debt. Because New York is a judicial foreclosure state, the lender must file a lawsuit against you to enforce their rights – only if they win and get a court judgment can they auction off your property. However, there are a few steps leading up to foreclosure you can also expect. Here is a general sense of what you can expect during this type of New York real estate foreclosure process.

Pre-Foreclosure

Acceleration Letter – A lender must send this to a delinquent borrower after a default but before filing a foreclosure suit. The letter must tell the borrower they intend to accelerate the entire mortgage amount if the overdue money is not provided by a certain date.

90 Day Pre-Foreclosure Filing Notice – New York law requires a lender to provide a special notice to the borrower at least 90 days prior to filing a foreclosure lawsuit. It must include specific language as well as provide the borrower the names of at least 5 nonprofit housing counseling agencies near them.

Foreclosure in New York

Lender Files a Foreclosure Summons and Complaint – To begin the foreclosure process, the lender must file a Lis Pendens as well as a Summons and Complaint in court. The Lis Pendens advises the public the property title is involved in litigation, and the Summons and Complaint officially start the lawsuit.

Lender Files Request for Judicial Intervention, Affidavit of Service and Attorney Affirmation – The lender has to serve the Summons and Complaint on the borrower and file an affidavit with the court stating when and how the borrower was served these documents. The lender should simultaneously file a Request for Judicial Intervention advising the court a Mandatory Settlement Conference must be scheduled – if they do not, the borrower may file this. The lender also needs to file an Attorney Affirmation with the court.

Borrower Files an Answer to the Complaint – You must file an Answer to the Complaint within a prescribed time period (which is set based on how the Summons and Complaint were served). Failing to file an Answer results in a default judgment, which allows the lender to ask the court for an Order of Reference appointing a referee to calculate the amount owed to the lender. After this is done, the lender can request the court enter a Judgment of Foreclosure and Sale, which allowed the lender to schedule the property for auction.

Mandatory Settlement Conference – The court will hold a mandatory settlement conference within 60 days of filing the Affidavit of Service to try and get the lender and borrower to come to a mutually agreeable resolution. You’ll receive a notice from the court with the conference time, date, and location, as well as a list of anything you should bring to the conference.

Litigation and Discovery Phase – If the settlement conference is unsuccessful, litigation begins and the parties request documents from each other the discovery phase. The lender may also file a Motion for Summary Judgment in this phase if they believe the borrower does not have a meritorious defense – if this is successful the court will grant the motion and the lender can seek an Order of Reference and an auction date.

Trial – If neither settlement nor a motion can resolve the case, the foreclosure lawsuit will then go to trial.

New York Real Estate Law Firm

It is important to be aware of the foreclosure process in order to be proactive in protecting your rights and avoiding very costly missteps. This is why it is highly advisable to consult an experienced real estate litigation attorney to help preserve your rights and secure the best outcome possible in your situation. At MOWK Law, we can help with all your residential and commercial real estate issues, including handling a foreclosure situation. Our consultations are designed to answer all your questions and get your legal problems solved—get in touch with us today!

In recent years, cities like New York have been at the center of a growing trend where stores enter leases with residential and office condominiums to operate on the ground floor of their buildings and cater to both tenants and the public alike. However, when entering these agreements, careful attention must be paid to the lease – standard forms and shopping center leases will not work, so the broker’s term sheet and the attorney’s draft least should address several basic issues and recognize the differences a retailer faces when operating in a condominium building as opposed to a traditional shopping center storefront. Working with an experienced New York real estate attorney is essential to ensure this arrangement runs smoothly.

Casualty Repair

The condominium board controls the insurance proceeds as well as any decision to repair the building, so the typical casualty clause stating the landlord will make repairs is insufficient. The casualty clause should include language specifying the landlord will ask the board to promptly repair any casualty. A tenant may even go so far as to ask the landlord’s representative on the board to vote for any requested repairs.

Lease Subordinate to Condominium Documents

The lease needs to expressly assert it is subordinate to and subject to the condominium declaration. It should also require the tenant to abide by existing rules related to garbage disposal and other store operations. 

Enforcing Condo Board Obligations

The lease needs to clarify the landlord only has limited rights and opportunities with which to make repairs, because the condominium board usually has the responsibility and power to repair the area outside the retail unit. Most landlords will not grant tenants the ability to bring an action against the condominium board in the name of the unit owner if needed repairs are not completed in a timely fashion.

Escalations

The escalations need to match the structure of the condominium. The share of tax increases, for example, for a condominium unit should reflect the appropriate portion of the premises the retail lessee occupies in that particular building.

Non-Disturbance Protection from a Condominium Default

In New York City, it is almost always true that a retail tenant’s rent payment vastly exceeds the landlord’s payment of the monthly common charges. A tenant, however, may have very valid concerns about what happens if a condominium unit owner defaults if the condominium board gives them a special assessment to pay. To prepare for such an event, tenants should ask the condominium board for non-disturbance protection. A potential retail tenant may also include a provision in their lease that requires the board grant them non-disturbance protection. If a non-disturbance agreement is not granted by the condominium board, potential retail tenants can examine the history of payments from their prospective landlord to the condominium as well as the rents paid to their prospective landlord to determine the level of eviction risk that exists for them in this situation.

Retail & Residential Lease Legal Help    

Looking for top notch New York legal help with your residential or retail lease agreements? Look no further than the talented team at MOWK Law for all your real estate law needs.

When unexpected financial difficulties arise, New York homeowners often struggle to keep up with a major expense in their lives – their mortgage payment. Many options are available to aid homeowners in making their payments or, if this option is no longer feasible, appropriately disposing of their property in a manner that recoups as much of the outstanding loan balance for lenders as possible. Loan modifications, refinancing, short sales, deed in lieu, and foreclosure are all viable options for homeowners, but foreclosures are generally the least favorable due to their impact on the borrower’s credit. They also are the most complex course of action, and we explore them further below.

Property Affected by Traditional Pre-Foreclosure and Foreclosures New York uses judicial foreclosure for real property such as a traditional family home or condominium. Co-op apartments are actually personal property, as the mortgagee owns a share in the company that owns the property and leases it back to them – meaning they operate under different foreclosure procedures and timelines. Judicial foreclosure requires a lender to file suit against the defaulting homeowner to enforce its lien against their house.

New York Pre-Foreclosure Steps

Prior to filing a formal foreclosure complaint, a loan servicer or mortgage lender must wait until the borrower is 120 days late on payments to allow them time to seek a loan modification, refinancing, or other avenues to cure their default. New York also requires all residential mortgage lenders to provide 90 days notice before foreclosing on an owner-occupied home. The notice must provide information on how homeowners can cure their defaulted loan and list of government-approved counseling agencies that can assist them.

Depending on the mortgage terms, a lender may be obligated to send a breach letter letting the homeowner know their loan is in default and indicating the lender’s intent to accelerate the entire amount due if the homeowner does not cure the default. Notice usually includes:

• A statement the homeowner is in default;
• Methods to cure the default;
• An allowance of at least 30 days to cure the default; and
• Notice that failure to cure may end in foreclosure proceedings.

Though no uniform rules exist for delivery method or notice contents, mortgages requiring a notice of breach will usually set out what must be included in the notice and the method of delivery required.

New York Foreclosure Steps

After the required 90-day New York notice period, a lender may file suit in court to try and foreclose on a homeowner’s property. The homeowner has a prescribed time frame to respond to the complaint and raise any applicable defenses to foreclosure. Failure to answer results in a default judgment. If the homeowner answers, a sequence of actions may commence, including:

• A Certificate of Merit or “Attorney Affirmation” from the lender’s attorney stating they have reviewed the necessary documents and that plaintiff if the creditor who may enforce its rights.
• An Affidavit of Service which may be required from the lender’s attorney.
• A Mandatory Settlement Conference held within 60 days of the affidavit of service’s filing.
• Formal Discovery in litigation if settlement cannot be reached.
• Filing a Motion for Summary Judgment or Default Judgment to try and prevail without going to trial.
• A trial following an unsuccessful (or no) Summary Judgment Motion.
• A Motion for Final Judgment of Foreclosure and Sale following a court judgment asking for a judgment authorizing a court-appointed referee to auction the property.
• Reinstatement of the loan at any time prior to the Judgment of Foreclosure and Sale (JFS), provided the homeowner pays all overdue amounts, late fees, and costs.
• A publication of a sale in a newspaper at least 30 days before it occurs if the homeowner doesn’t cure prior to the entering of a JFS and setting a sale date.
• A foreclosure sale where the property is sold to the highest bidder. Upon paying, the winner owns the property.
• The lender may seek a deficiency judgment against the former homeowner within 90 days of the foreclosure sale if the property sells for less than is owed. The deficiency is the amount the auction sale price or fair market value falls short of the amount owed by the homeowner.
• Eviction proceedings as necessary in the event the homeowner does not voluntarily vacate the premises after a foreclosure sale.

The complex proceedings leading up to and during a foreclosure are best maneuvered by an experienced New York real estate attorney to avoid any costly mistakes regarding one of your most sentimental and valuable assets – your home. If you are dealing with a residential or commercial foreclosure, get in touch with the talented team of New York foreclosure lawyers at MOWK Law today to discuss your legal options further.

Landlords can make a substantial amount of money by renting or leasing to tenants, but that opportunity comes with a large amount of responsibility. Federal and state laws grant rights to tenants and imposes duties on landlords in order to structure an equitable relationship between the parties and provide clear procedures for handling financial matters and resolving disputes. Read on for a brief overview of the major obligations a landlord in New York has to their tenants.

1. Comply with Housing Laws

City, state, and federal governments have enacted laws that protect tenants from discrimination and exploitation by landlords. The federal Fair Housing Act has created protected categories most landlords cannot use to reject applicants – race, religion, sex, family status, disability, or national original. This does not prevent landlords from rejecting applicants for issues such as bad credit or a history of eviction. New York’s housing law goes beyond the federal standard and includes prohibitions on discrimination based on sexual orientation and marital status. New York City has gone even further, prohibiting discrimination based on gender identity.

2. Prepare a Legally Compliant Written Lease or Rental Agreement

A rental agreement or lease between you and a tenant will set out the contractual nature of your relationship and dictates the key terms of your agreement such as rent amount, duration of rental, and rules the tenant must follow. It is also a place to include important mandatory disclosures about hazards such as lead paint and procedures for securing, holding, and returning security deposits. A legal, effective agreement will help you avoid disputes for the duration of your contractual relationship.

3. Maintain a Safe, Livable, Sanitary Environment

As a landlord you have a legal duty to maintain a livable, safe, sanitary living space for your tenants. This includes maintaining functioning heating systems, pipes, electrical wires, and water under New York’s implied warranty of habitability. Failure to do so allows tenants to take remedial actions such as repairing defective conditions themselves and deducting from the rent owed to you – even withholding rent altogether in certain situations if you are notified of problems and fail to make repairs.

4. Follow Established Procedures in Cases of Eviction or Tenancy Termination

As a landlord you cannot simply evict a tenant. A lease must be up, a tenant withholding rent, or a tenant severely violating the terms of their lease all constitute valid reasons for eviction. In these cases, you must take your tenant to court, establish valid claims for eviction or termination, and receive a warrant of eviction from the court to validly vacate the tenant.

5. Never Engage in Retaliatory Behaviors

New York law prohibits retaliating against a tenant for complaining about unsafe or inadequate living conditions. It is important to establish a documentary record of making repairs, logging complaints, and handling issues that arise with your tenants.

6. Maintain Tenant Security Deposits Properly

You do not have the right to spend a tenant’s security deposit and cannot commingle a tenant’s money with your own. At the end of the lease your tenant is entitled to receive a return of their security deposit with interest even if they do not specifically ask for it. Receipts are a wise idea to avoid unnecessary disputes, as are move in and move out checklists and itemized security deposit statements.

New York Real Estate Lawyer

Looking for legal help with your New York real estate issue? At MOWK Law we represent both landlords and tenants in their disputes in and out of court. Get in touch with us today and let’s chat about your landlord tenant issue and how we can help!

When dealing with New York real estate, prospective buyers of condominiums and co-ops should receive and review offering plans provided to them at least three business days before signing a contract with either the developer or the co-op sponsor. This document is critical to review prior to purchasing real estate as it should disclose vital information including floor plans, unit pricing, buying procedures, building bylaws, board finances, board operations, and in the case of buildings not yet operating how those buildings will be run once open.

Understanding Offering Plan Components

There are two components of offering plans – a narrative segment followed by supporting exhibits pertinent to the property and the prospective transaction.

Narrative

In the narrative section, the property’s features and purchase procedures are disclosed to the potential buyer. These details will usually include:

• A buyer’s responsibility for down payments;
• The timeframe for closing;
• Delegating who is responsible for handling taxes and closing costs;
• Developer contact procedures if construction issues arise;
• Time limits and manner for reporting construction defects; and
• The operations of the developer regarding the co-op or condominium complex.

When reviewing the narrative section of the offering plan, potential buyers should be wary of several situations that increase risk and should be disclosed. The risks may affect the property, price, or buying procedures and include:

• Lack of a financing contingency in the offering plan may prevent a buyer from receiving their down payment back if they cannot secure purchase price financing;
• Any adjacent property the developer owns (and could develop) that may affect future use and enjoyment of your property;
• A mixed used property where residential owners have no control over how commercial units are used; or
• A leasehold co-op or leasehold condo in which the buildings are developed by a party who doesn’t own the land under the building.

Offering Plan Exhibits

The offering plan also contains a section of exhibits for buyer review. A copy of the by-laws, associated documents pertaining to the property, the proposed purchase agreement, architect descriptions, and floor plans are usually included. Though these documents are often voluminous, tedious, and dense, it is important to read them over thoroughly or seek legal counsel, as some details may be easily overlooked and the plans may also offer a very small window for down payment return if there are any terms that and fundamentally non-negotiable and will destroy the deal.

Negotiating Terms of Condo or Co-Op Offering Plans

Nonnegotiable terms listed in the offering plan may include charges associated with the property you are purchasing, as these are often directly based on the building percentage you will own. However, even if some terms in an offering plan are not flexible, there are many elements that may be up for discussion. Closing costs, fixtures and appliances, transfer tax amounts, parking spaces and other building amenities may all be negotiable. Depending on parties, property, situation, and location, even something as fundamental as the price of the property unit may be negotiable under an offering plan.

New York Real Estate Law Firm

At MOWK Law, we help buyers and sellers with a range of real estate law issues. If you are looking for an experienced New York real estate law firm, get in touch with us today.

Click Here to view MOWK Law partner Daniel O’Hara on Fox 5 News discussing New York City’s proposed Pied-à-terre tax.