Real Estate Litigation

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).

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.

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)!

October 27, 2016

Condominium Insurance is Often Mis-Understood.

by Peter Klose

Over the years I have received various telephone calls from prospective purchasers, and handled many cases involving condominium insurance claims. Condo owners are often laboring under the misconception that the Condominium Owners Association insurance policy covers them in the case of disaster. This article from the Washington Post helps explain some of the differences between home owners coverage for the interior of the Condominium and the Home Owner’s Association coverage that covers damage to existing for already constructed portions of the unit.

Let’s take the example of a water valve break in an upstairs condominium unit. The water line breaks, flooding the upstairs apartment, and running down into, and ruining, interior walls, existing floors, and plaster ceilings of the unit below. In the case Klose & Associates handled, the water valve was originally installed by the condominium association when the unit was built, and there was a faulty water pressure regulator on the main water line coming into the stand alone building containing the five (5) units. The failure to regulate the pressure of the water caused the water filter to rupture many years later.

The condominium association had insurance coverage (but refused to pay) for the lines coming into the building (faulty regulator), and that insurance policy should have responded to the damage to the existing walls, floors and ceilings in the downstairs unit. The owner of the upstairs unit received payment from her insurance company of items damaged inside her apartment, and the owner of the downstairs unit received some coverage for items that she had installed in her unit, but the “master” insurance policy owned by Condominium Association should have paid for the damage caused by the failure of the pressure regulator to originally existing items in both Units. The condominium association refused to permit its insurance carrier to pay for any of the damage. [Whether that was appropriate or not should be the topic of another blog entry].

September 30, 2013

Attention New York Property Owners – Reduce Your Property Tax Bill.

by Peter Klose

In New York, grieving your property taxes means more than just complaining when your bill and assessment arrives. Each year the tax assessor for hundreds of municipalities sets a base line “assessment” for how much your they believe your real estate property is worth. Then, based upon formulas adopted by the State, they determineshow much you pay in taxes. You have the right to “grieve” your taxes by filing the correct form with your local “assessor,” in a formal review of the assessment, called a “tax grievance.”

As the property values escalated during the last decade, municipalities gleefully re-assessed the properties at higher and higher values so they could increase the amounts of revenue they collected from the real estate taxes. Homeowners are traditionally skitish about filing a tax grievance for various reasons– maybe they benefitted from such increased assessments because they took out home equity loans, or mortgages. That said, others refrained from filing a grievance fearing that the Town would reassess their property, find the various improvements made to the property, and then tax you more? While you may not file objections every year, the municipality is not permitted to raise your assessment because you grieved your taxes.

What does it mean for New York homeowners to “grieve” your property taxes. To begin with, you must file an RP-524 Form. This process is supposed to be simple, and is well explained here.

September 20, 2013

What if the Mortgage Company Revokes my Mortgage after a Commitment was Issued in New York.

by Peter Klose

Yesterday’s Blog dealt with what happens if you don’t diligently apply for your mortgage while attempting to buy a house. But, what happens if you got your commitment and the bank thereafter revokes it?

According to the case law, a purchaser should be entitled to return of the down payment. Kapur v. Stiefel (1999) 695 N.Y.S.2d 330, 264 A.D.2d 602 (1999). In that case, the purchaser obtained a refund where the mortgage commitment was revoked, makeing the mortgage contingency clause (generally relied upon to cancel the contract)unavailable. This is not automatic, and the question becomes whether the purchaser acted in “bad faith,” or intentionally caused the bank to withdraw the commitment. Although litigation might errupt over whether the purchaser acted in bad faith, if a court finds that they did not (based upon documentary evidence), then the purcahser should be able to get the money back from the seller.

Specifically, the Court held:

September 19, 2013

How protecting your downpayment begins with your mortgage application in New York Real Estate Contracts.

by Peter Klose

One of the must mis-understood concepts is the “Mortgage Contingency Clause,” and how you, as a home buyer, must diligently protect your right to cancel a real estate contract if you are unable to secure a mortgage. This blog is not about the situation where your Bank issues you a mortgage commitment, and then pulls out of the deal for some reason. By then, you have likely waived your mortgage contingency.

In New York State, signing a contract to purchase real estate is usually accompanied by a “downpayment,” which is held in escrow by the seller’s attorney. The downpayment is sometimes called an “earnest money” deposit. (I always thought that such term appropriately described the deposit because you are “excited” to be purchacing a house, but you must earnestly apply for a mortgage. Many times, it is traditional to put as much as ten percent of the cost of the house up as a “downpayment,” and that is the amount at risk if you do not properly apply for your mortgage.

In New York, the downpayment also represents a seller’s damages if the buyer breaches the contract and refuses to purchase the house without justification. A downpayment can represent up to ten percent, or more, of the purchase price depending on negotiations between buyer and seller.

May 31, 2013

ilence is Golden for Sellers in New York– the Property Condition Disclosure Statement (PCDS)

by Peter Klose

Who knows the most about your house? Its history, its features, its quirks, its problems? The answer is you, the seller. As someone about to sell a New York home, consult your lawyer (not your realtor) about the Property Disclosure Statement. Under New York State Law, you have a decision to make– complete a 35 question exam about your house, or give a $500 credit for not disclosing to buyers.

This disclosure or admission is part of New York’s Property Condition Disclosure Act, which became law in 2002. The law applies to all land that is improved by one to four family dwellings that are used or intended to be used as residences. Condominiums, cooperatives, vacant land to be used for construction, and certain other forms of ownership are exempt from disclosure.

It sounds simple, but the law demands much more than saying, “My home is in excellent condition!” or “My home is great!” In fact, the Act requires sellers to complete a six-page form that includes questions ranging from the age of your house to whether your property ever contained a fuel storage tank to whether you have ever tested the water quality and flow.

August 10, 2012

What Effect Does Your Landlord’s Housing Violation Have on Your Duty to Pay Rent?

by Peter Klose

So your landlord just got slapped with a housing violation – what does that mean for you as a tenant? Can you stop paying your rent altogether? If you live in New York, not so fast.

Although your duty as a tenant to pay rent is dependent on the landlord’s “satisfactory maintenance of the premises in habitable condition,” a housing violation on its own does not relieve you of your obligation to pay rent. Park West Management Corp. v. Mitchell, 47 N.Y.2d 316 (1979). The key factor is whether the violation threatens the health and safety of the tenant thereby breaching the landlord’s warranty of habitability. Park West, supra; New York Real Property Law, § 235-b. Therefore, a housing violation is merely the “starting point” in such a determination, and it is possible that the finding of a violation does not have an impact on habitability. Note, however, that the landlord’s warranty of habitability cannot be waived. Real Property Law, § 235-b-2.

If a breach of the landlord’s warranty of habitability is found, damages are measured by the difference between the fair market value of the premises in their habitable condition (as measured by the rent set forth in the lease), and the value of the premises during the period of the breach. Park West, supra. An award of damages to a tenant can be made through a lawsuit by the tenant to recover lease payments from the landlord, or in defense to an action by the landlord for non-payment of rent. Park West, supra.