New York Real Estate Lawyer Blog

September 12, 2011

Holographic Wills—What Are They, and What is Really Needed In Order For Them to Be Valid?

So you are sitting on your sofa thinking about life and all you have achieved and just like that it hits you-I have some assets that I would like to distribute to my family if something happens to me. The next thought that will likely cross your mind is: I should probably set up a will.

While the most effective way to distribute your assets exactly as you would wish is to get a will written up by an attorney; Courts in New York State have probated Holographic Wills–a will that was handwritten by the decedent.

In New York, precedent suggests that for a will to qualify for probate (to be valid), it must have been: (1) published by the decedent; (2) in presence of two witnesses. See In Re Pulvermacher’s Will, 305 N.Y.378 (1953). “Publication” means that the Testator has knowledge of testamentary character of instrument, and shares such knowledge with witnesses. Put simply, there needs to be a meeting of the minds between the testator (the person writing the will), and the attesting witnesses (the person who has agreed to witness the will), that the instrument (the ratty old napkin that you have decided to make your will on) they are being asked to sign as witnesses is testamenatory in character (basically that they knew they were signing a will). Estates Powers and Truste Law, Section 3-2.1(a)(3); see also In Re Estate of Pilon, 9 A.D.3d 771 (App. Div. 3d Dep’t 2004). And that is it!

July 21, 2011

Middle Class to Take Hit to the Pocket Book– Mortgage Interest Deduction is on the Chopping Block.

by Peter Klose

Perhaps it was inevitable that after 98 years, the middle class homeowner in New York (and elsewhere) should have to shoulder more burdensome tax liabilities through the loss of the Home Mortgage Interest Deduction. According to early reports, Congress and the President are about to wage war over removing deductions for interest on mortgage payments.

See one article here.

Bottom Line– the Federal Government needs more money, and the little guy, mortgaged to the hilt is gonna pay.

July 18, 2011

What Exactly is an “Important Paper” and how do you get “organized?’

by Peter Klose

As life becomes complicated, you become incapacitated, you are living alone, or if you just want to be prepared for emergencies; it is very important to organize your important papers so that loved ones can pick up the pieces in a moment’s notice. When I speak to a client who wants to prepare a will, I often tell that client to gather all of your important papers and information into one place so that another person might know how to find such information for you.

But, what is that “important paper” that should be gathered up and stored in an easy to access location?

Here’s a partial list of items you can use to get “organized.”

May 25, 2011

Attorney Fee Disputes in New York and Part 137 de novo review.

by Peter Klose

So, you signed the retainer with an attorney, litigated a case or resolved the matter, but now have a fee dispute with your lawyer over fees, malpractice, or something else. You are considering a lawsuit against that attorney, or that attorney may have sued you to recover her fees. You look at your retainer agreement and see that in contains a provision requiring arbitration under Part 137 (22 NYCRR 137 et seq.). What is that, and if you win, does your attorney get the right to re-litigate the finding of the fee arbitrators.

The answer to whether an attorney may litigate the arbitration finding and request a new trial (“de novo“) in the courts is a complex issue that has actually been litigated by attorneys seeking to avoid the findings of the fee arbitrators. Try to follow the chain of thought:

First, either party may reject a Part 137 arbitration award and sue for a de novo trial.

May 19, 2011

Attorney Malpractice, Title Insurance to Prescriptive Easements, No Access in New York.

by Peter Klose

The plaintiff in McColgan v. Brewer owned a part of what was a larger parcel of property owned by M. Kelley. During construction of the New York State Thruway, the state of New York acquired the middle part of the original Kelley parcel.

As a result, Kelley owned two separate parcels, one west of the Thruway and the other east of the Thruway. The physical layout required Kelley, and now the plaintiff, to use Albert’s Lane to reach Route 32. Kelley’s southern neighbors entered into a series of right-of-way agreements with the owners of the northern parcels to secure access to Route 21 via Alberts Lane in 1953. Kelley was never a party to these right-of-way agreements granting an easement between her property and Route 32.

The plaintiff purchased the Kelley parcels. Prior to purchasing the subject property, the plaintiff (1) hired the defendants Rothe Engineering & Construction and Donald Brewer to conduct a survey of the subject property, (2) hired the Attorney defendant Philip Kirschner to determine if the easterly portion of the property had access to Route 32 via Alberts Lane, and (3) obtained insurance from the defendant Chicago Title Insurance Company through a local agent, Abbacy Abstract, to insure against any losses that he would incur if the landlocked portion of the property did not have access to Route 21.

April 29, 2011

The Appraisal Contingency in Today’s New York Real Estate Contract.

by Peter Klose

In today’s real estate market of short sales, mortgages underwater, depressed prices and a buyer’s market, where financing can be a tricky and arduous journey there is one contingency that may protect the buyer– the appraisal contingency, often negotiated by attorneys for real estate buyers.

Stated simply, the appraisal contingency is designed to give a buyer the right to cancel the contract if the home does not appraise for the price the buyer agreed to pay. Take the case of a Florida couple who contracted to buy a house from for $620,000. The purchase and sale contract provided that the sale was “contingent upon this property appraising for no less than $620,000.” The purchasers commissioned an appraisal which apparently came in at $560,000, and refused to close.

In response, the Sellers secured an appraisal which valued the real estate at $635,000. The sellers sued for breach of contract, arguing that any appraisal of $620,000 or more obligated the purchasers to buy the house. The purchasers argued that since it appraised for less (by their appraiser) they could terminate. The Florida appellate court favored the buyers, ruling: “In our view, ‘appraising for no less than $620,000’ means that no appraisal may be less than $620,000,” the court ruled.

April 28, 2011

What to do about Buying a Home with your Significant Other in New York.

by Peter Klose

So, you want to buy a house, condominium, cooperative apartment or vacant land with your significant other in New York. You have been serious about this life partner for years, but you aren’t bound by the typical bonds of legal matrimony.

Did you consult with your real estate attorney, did you ask that attorney about a partnership or “co-habitation” agreement? What are you going to do if you are no longer interested in “cohabiting?” Too many times, people don’t ask these questions, and get burned later. Take for instance the common predicament of this individual.

As a real estate lawyer, I always ask unmarried couples whether they want a basic partnership agreement about what happens when they dissolve their relationship from a real estate perspective. In addition to a real estate partnership agreement, non-married couples should consider a cohabitation agreement, which is a contract that includes provisions about each partner’s separate property, debts and financial responsibilities and spells out the division of goods, property and responsibilities should the relationship dissolve.

April 26, 2011

Sometimes life just gets in the way– Judges in New York should be so Compassionate.

by Peter Klose

Should a lawyer be granted a continuance of a trial because his wife is expecting a baby?

Unfortunately, some lawyers didn’t think so, and the expectant father was required to make a motion to federal court to adjourn a trial. The Court, much to its credit, granted the adjournment with a dose of reality, morality and compassion rarely seen. Read the decision here. Read the decision here.

Bottom line– we are all part of the human condition, even if we are litigators.

March 18, 2011

Sidewalks are Our Responsibility in Nyack, New York.

by Peter Klose

A famous former New York City mayor prosecuted “quality of life” crimes to “clean up the streets,” but what if that enforcement mentality came to the streets and sidewalks of Nyack. This month, a local resident saw my article in the Nyack Villager, and asked,

My problem is with property owners that are allowed to grow their hedges and shrubberies well over the edge of the sidewalks. I have found the worst violators are along . . . . . Up to a foot of sidewalk is lost in places because vegetation has grown without proper maintenance. In places, two people who want to walk abreast have to go into single file…or worse, one has to walk in the street. At this point, it is more than just an annoyance, it is a safety issue. . . . .[Name withheld by me].

As someone who commutes by foot, I understand the blight of overgrown hedges, cracked and damaged sidewalks, and icy patches near down spouts pouring onto the sidewalk. What are the rules that govern our sidewalks, and whose responsibility is it to fix the problem? It turns out that the Village of Nyack has very strong sidewalk laws designed to make them clean and safe– the question is whether we as a community are going to enforce those laws.

March 16, 2011

Home Town Law-Nyack, New York

by Peter Klose

Do you remember the 1990 release of Pacific Heights where the young couple renovates their home and takes a nightmare tenant who refuses to leave. Whether you are a tenant or a homeowner, these river village towns in suburban New York incubate potential problems between unrelated families living under the same roof, sharing utilities, driveways, even entrances. What a complex relationship.

At the core is the landlord’s ownership interest in the land, which may be devised, lent or leased to a tenant. In exchange for paying rent, the tenant is supposed to be able to “quietly enjoy” the “demised space” without interference from the landlord, but subject to certain basic written or unwritten rules. Sometimes the tenant fails to pay rent, or the landlord fails to provide a clean, safe, warm place to live. Both parties jealously guard their rights (their castle), and feel indignant when the other fails to live up to their end of the “bargain.”

That bargain generally comes in two forms, either with a written lease or a “month to month” tenancy. Generally, a written lease has well developed language setting forth in plain language the rent, security, term, location, and the nuances of daily living by which the landlord expects the tenant to abide. Two rules of thumb for landlords: the security should be sequestered in a separate bank account even for a two family house; and the right to retain it at the end of the lease is not a given, meaning you have to follow the rules if there is damage.