Articles Posted in Real Estate Hints and Help

No matter who your attorney is when buying a parcel of New York State real estate, s/he should ask you whether you have investigated whether there are (or were) Underground Storage Tanks serving the heating needs of the house (or a Phase I search in a commercial transaction).

An underground storage tank is a tank and any underground piping connected to the tank that is at least 10% buried underground. They were very popular during the 1970s as this area increased in population, and oil heat was cheaper than gas. The result, however, is hundreds of USTs rotting and leaking causing much litigation and consternation to buyers and sellers of real estate.

New York State is a “caveat emptor” or “buyer beware” state that requires little by way of disclosure relating to known and unknown problems. USTs are a commonly “unknown” and hard to find because they are literally a ticking time bomb buried under the lawn. If you or your real estate inspector finds an underground oil storage tank (UST) during a real estate purchase, you, as the potential buyer, should take immediate steps to ensure that the tank is sound (through a pressure test) or was legally and properly “abandoned.” If there is any suggestion that the tank is not sound, or that it was not officially “abandoned” you should demand that the Seller immediately abandon the UST before the transaction takes place. “Abandonment” involves licensed contractors sealing the tank and verifying that it was not leaking, or removing the problems if they were leaking. Demand that the Seller provide you with a “spill closure” letter proving that the tank was abandoned.

In a transparent effort to raise fees, the New York State Legislature has instituted a fee hike on real property transfers, by increasing the filing fees for the RP-5217 Property Transfer Report. [See Real Property Law § 333(3), amended by L.2009, c.56, Pt. JJ, approved 4/7/2009].

The new fees increased most deed filing fees from $165 to $250, (for deeds submitted for recording after June 1, 2009). For questions on the new filing fee or other transfer report related matters, contact the Rockland County Clerk’s Office or the ORPS’ Data Management Unit at 518-473-7222.

Bottom Line, they have to make up the budget shortfalls somewhere.

There are various standard inspections that buyers of New York State real estate customarily order in their inspection process to buying a home. According to the pest control experts, there should be another– an inspection for Climex Lectularius or “common bed bug.”

Everyone’s worst nightmare is a hotel room infected with those tiny nocturnal insects that hide in nooks, crannies, and crevices during the day, but feed on humans (blood) at night. The nightmare scenario of oval flattent and wingless bodies which are a light to reddish-brown and 1/4 to 3/8 inch long (think apple seed). The welts take a day or two to develop and not all bed bug sufferers react to their bites, which delays detection and action.

Buyer beware if you’re buying a house or looking for a new condo or apartment because you may be moving into a home or apartment invaded by bed bugs. New York State law provides you no protection from such pest infestations because most sellers do not complete the Property Disclosure Statements choosing instead to pay a $500 penalty for not completing it before making the sale. Indeed, real estate disclosure laws often don’t apply to co-op and condo owners or lessors.

As the distress in the real estate market continues in New York, more and more people are turning to their lawyers to carefully review and consider their real estate sales contracts for any “loop holes” available to justify the cancellation of a contract and to win the return of a down payment.

The scenario in a New York City Condo purchase goes something like this. The buyer puts down a boat load of money as a down payment to secure an apartment in the hottest building in Manhattan, or any of the five boroughs. The developer starts having financial difficulties or can’t meet originally intended construction deadlines, and, in the intervening months (or years), the buyer loses interest or a job and can no longer afford the price (which has also declined). As the New York real estate market crumbles, so do these deals, and the buyer wants out.

Recently, some bright and creative New York Real Estate litigators have turned to an ancient, but potentially useful, statute passed in 1968 and known as the Interstate Land Sales Full Disclosure Act, to argue that the down payments should be returned and the contracts voided because the Developer did not comply with the provisions. The Interstate Land Sales Disclosure Act generally applies to developers selling or leasing–through interstate commerce.

In this era of distressed real estate, and even more distressed home owners, there are several life rings being thrown around including “sale-lease back” options. Under a typical “sale and lease back” situation an “investor” buys a person’s home and leases it back to them. The practice is both common and legal in real estate, and is intended to raise cash for short-term needs or to secure tax benefits. Sometimes, the leaseback agreements permit the sellers the right to repurchase the property after some prescribed period and that is often a benefit to the investor in an inclining real estate market.

In residential real estate, the sale-leaseback allows financially strapped homeowners in financial trouble to stay in their homes and pay their debts, but the practice is susceptible to fraud when investors don’t give homeowners the promised money. For example, some “investors” pocket the mortgages they obtain from banks or strip equity from the homes rather than letting owners get back on their feet.

The WSJournal had an interesting article which explained the potential pitfalls of such a relationship.

Did you know that New York State has in the past, and continues to, sell, give, and transfer portions of navigable waters to interested upland owners. What does that mean?

Ever wonder who owns the lands under the Hudson River? In river communities where water front property is valuable for its view, the land can also be valuable for land you cannot see– the land under water.

“Land under water”‘ is land submerged by water, and includes that land below the high water mark in navicable waters (rivers), tidal water (estuaries), lakes and ponds, and, at times, can appear to be dry land (perhaps it was previously filled naturally by development). The owner of property on “dry land” is referred to as the “Upland Owner,” and is often benefited by actually owning the rights to the land under water. Generally speaking, New York State owns the land under all navigable lakes, streams, and rivers.

When you are buying your house did you consider whether you can have a professional office, whether you can add an addition to the north side, whether you can live in the third floor attic? These are all questions relating to the building and zoning laws both of New York State and the local town, county or village where you are buying. So what questions should you ask your real estate broker, your building inspector, your lawyer.

Here’s a quick list of some of the issues you should consider when you look at the property, whether it is residential real estate or a New York City building.

Does the property have a certificate of occupancy?