Frequently Asked Questions
What is a Landlord/Tenant Holdover proceeding?
Commenced by a Landlord if a Tenant is violating specific terms of the lease (ex. Subletting without permission of the Landlord; Causing a Nuisance; Violating a No-Pet Clause in the lease).
Both types of Proceedings have “Pre-Notice Requirements” (notices that must be served to the tenant before it can be bought to Court). After the Notices are properly served, and the time requirements have expired, then a Notice of Petition and Petition are served upon the tenants. The Notice of Petition / Petition are the equivalent of what is commonly known as the Summons and Complaint in other legal proceedings.
What is a Landlord/Tenant Nonpayment proceeding?
• If a Tenant is not paying the monthly rent as required by their lease.
• The tenant must be in possession of the Apartment in order for the Landlord to commence a summary nonpayment proceeding.
Both types of Proceedings have “Pre-Notice Requirements” (notices that must be served to the tenant before it can be bought to Court). After the Notices are properly served, and the time requirements have expired, then a Notice of Petition and Petition are served upon the tenants. The Notice of Petition / Petition are the equivalent of what is commonly known as the Summons and Complaint in other legal proceedings
What is an Attorney’s Role in a Residential Real Estate Closing in New York? (Representing the Buyer)
Representing the Buyer
An attorney representing the Buyer receives and reviews the Contract of Sale, and if necessary, negotiates terms and conditions in the contract, as directed by the client.
The Buyer’s Attorney should address any and all issues resulting from a house inspection, and include these issues in writing in the Contract of Sale.
Once the Seller and Buyer are “in contract”, there are certain deadlines that a Buyer has to meet such as the Buyer’s mortgage commitment within the contract guidelines. Therefore, the Buyer’s attorney should monitor the status of the client’s efforts to secure a mortgage, and get a determination on whether or not the Buyer will qualify for the financing that is applied for.
The Buyer’s Attorney is usually responsible for ordering a title search and examining the title report to make sure there are no liens or judgments affecting title to the home. This is very important to ensure that the client has a clean title as the new owner.
At the closing, if financing is involved, which usually is the case; the Buyer’s Attorney facilitates two separate closings (1) the closing of the loan, and (2) the closing of the transfer of title.
For the closing of the loan, the Buyer’s Attorney must make sure the client understands the terms of the mortgage, the note, and other various bank documents.
For the closing of the transfer of title, the Buyer’s Attorney must make sure that title to the house is clear of any liens, encumbrances or judgments that affected title prior to the Buyer taking ownership.
A closing statement and closing file are always generated and provided to the client after the closing. The closing statement provides the client with an itemized breakdown of all of the fees incurred by the client in the transaction, the amounts of these fees, and what the fees were for in relation to the sale or purchase.
What is an Attorney’s Role in a Residential Real Estate Closing in New York? (Representing the Seller)
Representing the Seller
An attorney representing the Seller must draft the Contract of Sale which details all of the terms and conditions that are agreed to between Buyer and Seller.
The Seller’s Attorney, in most cases, also acts as the Escrow Agent in the transaction. This means that the Seller’s Attorney holds the down payment “in escrow” until the day of the real estate closing.
The Seller’s Attorney is responsible for clearing any title issues (mortgages, liens, judgments, etc.) that are “attached” to the property, or affect the property.
The Seller’s Attorney must make sure that all real estate transfer taxes charged by the state and/or city are paid (usually paid by the Seller).
Prior to the Closing, the Seller’s Attorney must draft all of the required transfer documents such as the Deed and the Transfer Tax Returns.
At the Closing, the Seller’s Attorney collects the balance owed for the purchase (purchase price minus the down payment), and disburses all of the funds collected to the proper payees in order to transfer a “clean title” to the Buyer.
What is the “Closing”?
The closing is a final meeting of all the parties involved in the real estate transaction. Attorneys for buyer, seller and bank convene with sellers and buyers to sign and officially transfer title to the buyers. A representative of the title insurance company will also be present to facilitate the transfer of title. The title company is also responsible for recording the new deed. Before arriving at the closing, the buyer should visit the property to assure that everything is in working order. That means turning on the heat and air conditioning and checking for leaks and other problems. After the closing any problem is the buyer’s responsibility. The buyer should also have all the necessary paperwork and certified checks for the seller and for various closing costs. Otherwise, if the mortgage, title, homeowner’s insurance and other documents required by law are not completed and brought to the closing table, the closing may be delayed.
Since my spouse passed away, I want to re-title my house so I own it jointly with my adult children. Is this a good idea?
While sharing title to property may avoid probate after your death, naming “joint tenants” may have a number of adverse consequences. In effect, adding a joint tenant to your home deed means that you have now gifted a portion of that property to those named. And when you make gifts in excess of $14,000 in value within a calendar year to someone other than a spouse, the IRS requires you to file a gift tax return, and in some cases pay gift taxes. When gifting an interest in your home to anyone, you also are endangering your own financial security. If your new co-owners have creditors or are involved in a divorce, your assets will be at risk. Furthermore, such a transfer may jeopardize certain property tax and other exemptions you enjoy as a senior, veteran, or homesteader. A better idea is to create a Living Trust and name your children as beneficiaries of the Trust after you die. This has the advantage of avoiding probate, yet it gives you total control of your house prior to transferring ownership. You can also change beneficiaries if you so desire, and also provide for the circumstance if one child predeceases you.
What is a quitclaim deed?
A quitclaim deed transfers or “releases” to the person acquiring the property whatever present interest the grantor has in that property. Unlike a grant deed, a quitclaim deed carries with it no express or implied covenants or guarantees. Therefore, if the grantor has no interest in the property, a quitclaim deed conveys nothing.
What tax advantage do I get by owning real property?
Mortgage interest deduction: The major advantage to owning real property comes from the deductibility of the interest of a home mortgage or a home equity loan. In order to qualify for an income tax deduction, the loan must be for your home or a vacation home that is not rented to others. The deduction must be taken as an itemized deduction in Schedule A of your federal tax return.
Property tax deduction: real estate taxes paid to any state or local governments are also deductible on your federal return. Generally, the taxes must be based on the assessed value of the real property and must be charged uniformly against all property under the jurisdiction of the taxing authority.
Capital gains exemption: Once you sell your residence, you may exclude up to $250,000 ($500,000 for married couples) from any realized capital gains. In order to qualify, you must meet certain requirements: among other things, you must have lived in that home for at least two of the five years prior to the sale, and not have excluded gain from the sale of another home two years prior to the sale.
What is the purpose of “recording” a deed?
When you purchase real property, you receive a written document called “the deed” which transfers the ownership of the property from the buyer to you as the purchaser. The deed gives you formal title in exchange usually for a specified amount of money. The transfer of interest in real property is not complete until the deed is delivered to you. The deed should be recorded immediately with the county clerk in the county where the property is located. By recording the deed, you give notice to all future potential buyers of that property that you now have an ownership interest in that particular piece of real property. Recording also tracks the chronological chain of ownership from a series of buyers and sellers. Before you purchase real property, a search is conducted at the county clerk’s recording office to confirm that the seller (as well as all previous sellers) has legal title to the property in question. Title insurance typically performs this function to determine whether any defects occurred in prior conveyances and transfers. If so, such defects may then be pointed out and excluded from their coverage.
What is the difference between a cooperative and a condominium?
In a “condo” arrangement, you legally own a particular unit in a multiple unit structure of the building. Under a typical arrangement, you have a share and a right to use common areas such as hallways, elevators, gardens, swimming pools, and club house within that structure. You pay monthly payment to an “association” for maintenance expenses the common areas. The association is typically run like a corporation with complaint and appeal processes to protect individual rights of owners and to provide a mechanism for resolving disputes within the community.
In a “co-op”, the ownership structure is quite different: you do not own your own specific unit in the building but own stock in the corporation that actually owns the building and all the apartments. You lease your apartment from the corporation according to a formula based on the unit’s size. As a shareholder, you have a say in electing the Board of Directors who manage the cooperative.