New York Real Estate Lawyers

Out From The Shadow Docket

CoopAndCondoLaw — Tue, 15 May 2012 15:19:05 +0000

The Courts have proposed a rule that would enable them to force dormant foreclosure actions into settlement conferences. The rule is an attempt to thwart the lenders from merely filing a foreclosure action and then doing nothing with the case. The lenders are able to accomplish this file and wait tactic because additional documents, other than the Summons and Complaint, need to be filed in order to have a judge assigned to the case and a conference scheduled.

A case filed in New York Supreme Court is subject to the Individual Assignment System wherein, a judge is assigned to a case only after a Request For Judicial Intervention is filed. Only then will the case move forward in the litigation process and a judge will be assigned to the case. The plaintiff’s attorney in a foreclosure action needs to also file proof of service and an attorney affirmation attesting to the accuracy of the documents filed. The NYLJ classifies this as a “legal limbo” for homeowners who are served with the foreclosure documents and then never have their cases progress.

The proposal by the Courts would allow the county clerk to place filed foreclosure actions on a special foreclosure calender, dubbed a “delinquency calender”. At that point motions could be filed and conferences scheduled, including settlement conferences. The current delays may be a welcomed reprieve for homeowners, but these continued delays are detrimentally effecting others. Particularly cooperatives and condominiums who rely on the maintenance and common charges from the owners of the apartments to pay the buildings taxes and utilities. The coop and condo owners who have their mortgages foreclosed upon, generally and simultaneously stop paying their maintenance and common charges. Sometimes these charges enter the hundreds of thousands of dollars in unpaid balances. This is just one example of the collateral damage the lenders cause by delaying the prosecution of their foreclosure actions.

Condo Developers Dealt Another Blow

CoopAndCondoLaw — Thu, 15 Mar 2012 15:33:20 +0000

New York Supreme Court Justice Singh has ordered a condo developer to return $16 million to individual purchasers of condominium units in the case styled CRP/Extell Parcel I, L.P. v. Cuomo. The law firm who drafted the developers offering plan mistakenly drafted the documents with a rescission date of Sept. 1, 2008 instead of Sept. 1, 2009. Since the first closing did not occur on or before Sept. 1, 2008, the purchasers were entitled to cancel their contracts of sale and obtain a refund of their deposits. The law firm representing the developer argued that the incorrect date was a scrivener’s error that should be changed by the court to reflect the true intention of the parties. The Court held, as reported by the NYLJ, that there is no inconsistency whatsoever regarding the rescission date in the governing documents. The Court reasoned that the public needs to be able to rely upon the information in the offering plan regardless of errors made through no fault of their own. Therefore, the purchasers were entitled to cancel their contract and receive their deposits totaling $16 million.

Old Law Brings New Relief

CoopAndCondoLaw — Thu, 01 Mar 2012 15:51:16 +0000

The Interstate Land Sales Full Disclosure Act (ILSFDA) was enacted in 1968 to prevent deceptive practices of the sale of unimproved tracts of land by requiring developers to disclose information needed by potential buyers. The original purpose of the act was to protect purchasers from unscrupulous sales of undeveloped home sites, frequently involving out-of-state sales of land purportedly suitable for sale but actually under water or only suitable for grazing.

Most recently the Southern District of New York has ruled that ILSFDA also applies to purchasers of condominium units. Developers who do not follow the procedures provided for under ILSFDA have been required to return the deposits of potential purchasers looking to rescind their contracts of sale. Although developers are arguing that ILSFDA should not be used by purchasers of individual residential units, the Courts are disagreeing and returning deposits to an alarming amount of purchasers who entered into agreements with developers of new construction condominiums. It appears that the old adage of “buyers beware” has been turned on its head.

And The Foreclosure Hits Keep On Coming

CoopAndCondoLaw — Fri, 20 Jan 2012 14:23:17 +0000

Federal National Mortgage (FNM) began an eviction proceeding against a couple who occupied their apartment after FNM obtained the deed to the apartment through a foreclosure sale. The, now, tenants of the apartment argued that FNM could not maintain the eviction proceeding since FNM was not the proper assignee to the underlying mortgage for the apartment. The Court held, as reported in the NY Law Journal, that FNM did not provide sufficient evidence that it was properly assigned the underlying mortgage prior to or during the foreclosure action. The Court stayed the eviction proceeding to afford the occupants of the apartment an opportunity to return to the Supreme Court and have their concerns regarding the improper assignment addressed by the Court. Lenders continue to face tough opposition in the New York Court system where, it is longer assumed that the banks acted properly when executing and/or foreclosing upon a mortgage.

If You Touch My Property, You Will Pay.

CoopAndCondoLaw — Thu, 12 Jan 2012 21:57:08 +0000

Eminent Domain has been around and used by municipalities dating back to feudal England. The primary reason for the taking of private land is that its benefit to the public is far greater. Of course this benefit comes at a price. There needs to be a valuation of the property according to the “highest and best use”. For example, a Village may claim that the highest and best use for a track of land is for light industrial use and value it at $5 million. The owner of the land may say that the land has water views, the grading is flat and the highest and best use is for residential condos valued at $20 million. Of course, as it has been for centuries, an owners greatest recourse in defending against such a diminished value is to petition the Courts for a ruling. The municipality must adhere to the Court’s decision and pay what the actual value is decided.

If Your Friends Jump Off a Roof, Are You Going To?

CoopAndCondoLaw — Wed, 04 Jan 2012 13:58:07 +0000

The answer is yes and then sue the homeowner when you jump off the roof onto a trampoline and injure yourself. That is exactly what the family of James Hallwood did after he voluntarily followed two friends who were horsing around in the backyard of a neighbors home. James, an honor student, knew of the dangers but insisted on jumping anyway. According to the New York Law Journal, the Court will allow the suit to go forward since there are triable issues of fact regarding the assumption of risk. Unfortunately for the homeowners, even stupidity gets its day in Court.

Good Fences Make Good Real Property Cases

CoopAndCondoLaw — Wed, 04 Jan 2012 13:47:55 +0000

The literary aphorism used to end with “good neighbors” until neighbors in the bronx sued for beach access to the Long Island Sound. The beach front property on either side of Casler Place is owned the Acquafredda’s. They decided to put up a new fence across the properties blocking access to the beach for the local residents of Schuylerville. The residents sued the Acquafreddas for access.

According to the New York Law Journal, the Acquafreddas argued that they always maintained a fence on the property. The neighbors argued that an easement was created that allowed them to enter the beach area through the fence. The First Department, in a unanimous opinion, agreed with the neighbors and upheld an injunction ordering the Acquafreddas to halt construction of the fence and not to block access to the beach. The opinion stated “something there is that doesn’t love a wall. It is called an easement.”

Turns Out You Can Soar With The Eagles Even If You Lie With The Pigs

CoopAndCondoLaw — Tue, 08 Nov 2011 00:14:15 +0000

Tudor City is this quaint neighborhood in the east 40′s that now looks over the United Nations. The site of the UN was once a slaughterhouse for animals and an unsightly place to live. This is the reason why Tudor City Coop’s were built with their public hallways facing the East River and not their apartments. But today, it’s a lovely space that offers studio apartments as low as $170k, as reported in the NY Times. Buyer’s can enter the Manhattan real estate market for under $1,000, including their mortgage payment and their maintenance. The Tudor City Coops generally have subleasing restrictions to encourage owner occupancy though. For the new buyer or young professional, there is no better Manhattan deal out there. The “creative” thinker will have to make do with the under 300 square feet accommodations, but who cares, you own an apartment in Manhattan!

Rats…Foiled Again

CoopAndCondoLaw — Mon, 31 Oct 2011 12:47:46 +0000

A subway rider sought to recover damages for injuries sustained, when he jumped out of a rat’s way and fell on the train platform. In premises liability cases actual or constructive notice of the condition is required in order to recover damages from a premises owner. Testimony from an MTA employee found that 20 minutes before the accident, no garbage or rats were present. The Court agreed with the MTA and found that Plaintiff’s evidence did not raise a triable issue of fact,as reported in the Law Journal. The Court further stated that, the sequence of events could not have been foreseen or protected against and the premises owner could not be held liable.

Hitting The Gas On Foreclosure Without Checking The Mirrors

CoopAndCondoLaw — Mon, 31 Oct 2011 12:37:50 +0000

A New York District Court upheld an acceleration clause in a mortgage foreclosure action that did not require prior notice. The borrowers default on payments was sufficient enough, after the lender presented to the Court the note, mortgage, and an affidavit stating borrower’s default, to satisfy New York’s requirements for foreclosure. The New York Law Journal cited Bank of Am. Nat’l Assoc. v. Commack Prop. LLC as the seminal case for NY foreclosure requirements.