General Interest

September 26, 2024

Tenants by the Entirety- still a thriving area of litigation (for some reason).

In past links, I have discussed “Tenancy by the Entirety,” where a deed to a Husband and Wife is presumed to convey the property to each as equal and inseparable joint tenants. That means, one may not convey without the other, and creditors may not partition their interests. Indeed, when one tenant by the entirety dies, the other inherits the real property regardless of what any Last Will and Testament states. Despite this seemingly well established rule, it’s still litigated.

The Second Department rendered an interesting decision in Ciaccio v. Wright-Ciaccio, 2022 NY Slip Op 07215, decided December 21, 2023. The decedent’s children claimed an interest to their father’s property where the father had, prior to his death, executed and recorded a deed adding his current wife (the children’s stepmother). Although not critical, the deed mentioned that the stepmother was designated as “His Wife.”

In affirming the lower Court’s ruling, the court reaffirmed that the designation in the Deed as “His Wife” created a documented Tenancy by the Entirety and therefore, the children’s allegations that (1) the father “intended” only to create a Tenancy in Common had no merit and (2) that the stepmother destroyed a Will evidencing the father’s intention to give the children an interest in the property had no relevance given that the father’s interest in the property transferred to his wife immediately upon the his death by operation of law.

February 20, 2024

Title Vesting When a Property Owner Dies Intestate (without a will)

by Peter Klose

I often get calls from people concerned about deeds to real property when someone dies without a will. When a property owner dies intestate (without a will) the transfer of their real property does not require any action by an administrator or executor. Instead, title to the deceased’s real estate automatically passes to and vests in their heirs or next of kin at the time of death by operation of law. Under New York law, when someone dies intestate, their distributees become tenants in common of any real property the deceased owned. This means each heir acquires an undivided fractional interest in the property. The share of each heir depends on their relationship to the deceased. For example, if the only heirs are the deceased’s children, each child would receive an equal share as Tenants in Common. A “tenant in common” is owns an undivided interest that, if that tenant dies, that persons’ share passes to their heirs or to the people specified in the terms of the deceased tenant’s will.

When there is no will, the vesting of title occurs by operation of law at the moment of death, regardless of whether an administrator is ever appointed or new deeds are recorded. As several New York appellate court decisions have held, no affirmative act by an administrator is needed for the heirs to acquire their interests in the real estate. (see U.S. Bank Trust, N.A. v Gedeon, 181 AD3d 745, 747; Matter of Blango, 166 AD3d 767, 768; Kraker v Roll, 100 AD2d 424, 429). The intestacy statute confers title automatically based on the heirs’ relationship to the deceased. Recording new deeds can provide evidence of the change in title, but the failure to do so does not prevent the vesting by descent. The heirs become tenants in common of the real property at the time of death even if no new deeds are filed.

That means, even if there have been on administration proceedings to appoint an estate representative, under New York’s partition statute, the heirs (as tenants in common) have the right to maintain an action to partition and force the sale of the subject property (see RPAPL 901[1]). New York case law confirms the heirs’ standing to bring a partition action in Supreme Court after inheriting property intestate (see Goldberger v Rudnicki, 94 AD3d 1048, 1050; Graffeo v Paciello, 46 AD3d 613, 614).

January 10, 2024

LLC Transparency (New York) and the CTA (Federal) Compliance becomes reality and potentially expensive.

by Peter Klose

Corporate Compliance UPDATE—(January 10, 2024).

LLCs have been a favored entity for real estate for many years in New York. Times are changing. For those of you who own a beneficial interest in a New York Limited Liability Company, you need to contact your attorney. Effective January 1, 2024, LLCs must comply with New York’s new LLC Transparency Act, which will create a database of the beneficial owners of Limited Liability Corporations that is accessible to government agencies and law enforcement. According to our Governor,

“For far too long, bad actors have been protected by the loose disclosure requirements of LLC ownership. Wage theft, money laundering, tenant mistreatment and other unlawful activity has been masked by the opaque ownership structure of an LLC. The new LLC Transparency Act will give law enforcement and State regulators the tools they need to hold bad actors accountable.”

August 19, 2020

Tenancy by the Entirety

by Peter Klose

(Nyack, New York) I wanted to follow up on my prior blog post about “tenants by the entirety.” As I pointed out in that post,

It is interesting to consider what other “ramifications” owning property as tenants by the entirety might have. Given the “undivided” nature of the ownership relationship, a question about whether a creditor might be able to somehow “levy” against one spouses “share” of the real property might arise. Generally, most commentators suggest that the undivided nature of the interest makes one spouse’s interest in the property indivisible, meaning that the creditor cannot force the partition of the tenancy by the entirety without the debt being against both tenants, or spouses.

In New York, when a married couple purchases real estate the interest that the married couple has in the property is called a tenancy by the entirety. In that form of ownership, each party is said to have an undivided interest in the whole property. It is as if the married couple is “one person” in the eyes of the law. This type of ownership has certain benefits for the married couple. One of those benefits is that when one spouse dies, the other spouse automatically becomes the owner of the entire interest in the real property. So, in the above example, when one member of the married couple dies, the property would automatically pass to the surviving spouse.

July 14, 2020

The State of Fair Housing in These Times of Change.

by Peter Klose

Before the recent protests and resurgence of the Black Lives Matter movement, I was asked by a group of Realtors to present a continuing education program on Fair Housing. I poured over the various laws in New York, particularly in Rockland and Westchester County to find the status of the law. With help from the Rockland County Division of Human Rights, I presented a fairly bland state of affairs to a mostly attentive group using hypothetical scenarios. Though I have dealt with some complaints over the years, as an attorney, I never really saw the how discrimination worked or operated in my communities. Until today. Today, I stumbled upon this fine piece of investigative journalism, and I commend all to read and watch the documentary.

To summarize, Newsday engaged the Fair Housing Justice Center in Long Island City, to help structure and implement testing and train testers, and then sent the results to two nationally recognized experts in fair housing standards to analyze the findings. The results are astounding.

By way of refresher, the federal Fair Housing Act prohibits discrimination in housing related transactions because of race, color, religion, national origin, sex, disability or familial status. Many state and local laws also prohibit housing discrimination based on several additional protected classes. The Fair Housing Act applies to a wide variety of housing transactions, including rentals, sales, home mortgages, appraisals and homeowners insurance. Landlords, real estate agents, lenders, insurance companies and condominium, cooperative and homeowner associations must not discriminate because of one’s membership in a protected class.

April 3, 2020

COVID -19 Response from a Legal and Estate Planning Perspective- Protect your Family.

by Peter Klose

(Nyack, New York- April 3, 2020) We all hear the horrible, and getting worse, stories of loved ones sick, suddenly finding themselves in the hospital, incapacitated, and no longer in touch with their family members, unable to pay their own bills, manage assets, or even make medical decisions. With the outbreak of Coronavirus (COVID-19), this scenario is a growing concern, and unfortunately, a growing reality for many.

What are common issues families face when a loved one is incapacitated and what Estate Planning documents might give all a piece of mind:

* No power to make medical decisions if you are unable to communicate your medical wishes;

March 5, 2018

Privacy and Social Media: How Your “Private” Content is Still Discoverable in a Lawsuit.

by Peter Klose

With all of the “fake news” making history in our world, it is important to remember that, as ubiquitous as Facebook may be, what you post may not be so “fake” when it comes to your personal litigation position. If you have a lawsuit, whether it involves claims for personal injuries, or adverse possession, your postings on Facebook may become more public than you think.

Many social media users change their Facebook to “private,” in the erroneous attempt to remain “private,” assuming that their posts are private, viewable by themselves and selected “friends.” The same goes for “private” messages shared over Facebook messenger and their selected recipient.

In today’s social media frenzied world, however, Facebook posts and messages may not be so “private” if they tend to prove or disprove claims you make in a court case. In that regard, New York State’s highest appellate court recently ruled that “private” social media posts, particularly Facebook posts can be requested and made available to a court in “discovery,” the pre-trial procedure where each party requests evidence from the other.

February 16, 2018

Airbnb and the sharing economy: is it legal to rent out my home?

by Peter Klose

With the rise of the so-called “sharing economy,” more homeowners have been looking to rent out their properties in the short term on websites such as Airbnb to earn extra cash. However, as short term rentals have increased in popularity, municipalities across the United States have begun considering legislation and instituting stringent regulations or outright bans, often with hefty fines for violators.

Following the law is critical to listing on Airbnb, because you (and not Airbnb) can be held solely liable for the illegal listing. Many cities have taken to scouring the website to track down listings that are unapproved, and a new law signed by Gov. Andrew Cuomo in 2016 imposed fines of up to $7,500 on those caught illegally listing on the site. Critics of Airbnb argue that by making it easier to rent out apartment units for short terms, less units are available on the wider market which drives costs higher. Since 2010, it has been illegal in New York to rent out a whole apartment for less than thirty days (although the law makes an exception for when you are staying on the property for the duration of the stay). State lawmakers saw Airbnb as a tool to evade this law, and argued that stricter fines were necessary in order to stop the illegal rentals.

If you would like to rent a house on Airbnb outside of New York City, the laws are different than those for apartments. Your municipality could have an ordinance banning Airbnb already on the books (often rules prohibiting bed and breakfasts apply to Airbnb too), unbeknownst to you. One local resident of Grand-View-on-Hudson, in Rockland County, rented his home on Airbnb for New Years Eve. Not only did he return to over $100,000 in damage from the previous night’s party, the village’s mayor later told Lohud.com that Airbnb listings were in fact prohibited under local rules. (Not necessarily accurate)!

January 5, 2018

Real Estate Broker “Dual Agency”: What it is, and what it means for you in a real estate transaction.

by Peter Klose

Most homebuyers and sellers are accustomed to the usual model of agency: the seller and buyer each have a real estate “agent” representing them during the showing, negotiation and final closing of a real estate transaction. Typically, the realtor is an “agent” who works on behalf of a buyer or seller with “fiduciary” responsibility to act in their best interest. Wikipedia defines “fiduciary” as “a person who holds a legal or ethical relationship of trust with one or more other parties . . . and . . . entrusted” to act with loyalty to their principal- either the buyer or the seller.

But, what happens when the buyer and seller are both represented by the same agent, and that agent is typically being paid by the Seller under a multiple listing agreement? Say one agent has a listing, a prospective buyer calls the number on the web-site and gets that agent on the telephone, and then shows that house to the caller. In New York, most real estate brokers who represent sellers have a written agreement to be paid a commission at the time of closing. When the prospective purchaser calls about the house they want to purchase, they don’t contemplate that the agent is working for the seller.

In New York, that listing agent can show the house to the buyer, but must disclose that they will then be working both for the seller and the buyer, a “dual agent.” This arrangement is more common in small real estate markets with fewer properties and firms, but can also occur at a large real estate brokerage firms, where buyers and sellers have different real estate agents licensed by the same company. Dual agency is legal in New York State (but not all states) so-long as conditions for written disclosure are met. New York requires all real estate agents and brokers to specifically disclose their relationship to the transaction, buyer or seller or both.

January 3, 2018

The hidden costs behind title insurance: How title companies used to pay “inducements” (kickbacks) to encourage lawyers and realtors to use them and the 2018 New York State regulations designed to stop them.

by Peter Klose

Title insurance is a must for all home buyers in New York. A title company searches the public record to identify potential issues with the title. Common problems include things like old liens, judgments, encroachments, survey overlaps, outstanding mortgages or unpaid taxes against the property being purchased. Title companies play an important role in real estate transactions because they act as a “risk mitigater” because they verify that the piece of property is unburdened by title issues and “indemnify” the owner and lender for such problems.

There are two types of title insurance; owner title insurance and lender title insurance, both of which you pay for at the closing if you are mortgaging your home. If a person emerged to claim that they were the rightful owner of the house, or had a judgment or lien against the house, then there might be title “claim” to the applicable insurer. Assuming the title insurance company agreed, and had not excepted coverage in the original policy, lender title insurance would reimburse the lender the amount they lent to purchase the home (or your title was damaged), or might hire title attorneys to repair the problem. If you had owner title insurance policy, you would be paid for the value of the loss, or the title insurance company would work to sort out the title claim (indemnify you for your losses, including attorneys fees to repair the title issue).

Either way, title companies are integral to the home buying process protecting consumers from purchasing a home that could present headaches down the road. But how do we choose a title company and how much will the buyer and seller pay at the time of closing?