New York Residential Real Estate Legal Questions

The issue is whether you are being singled out for such treatment.  If you are, a lawyer can write a letter or get involved to make an issue that might scare them into agreeing to accept one of your buyers.  The broker should also have more political ability to get a deal through.  Talk to the broker about why he or she is wasting your time bringing unqualified buyers, which is not helping you.  If you have financial problems such that you need to dump this apartment sooner rather than later, there are other options to consider that can give you an edge.... Read More

There are several different aspects to your situation which require detailed analysis.  To begin with, if the trust was drafted in a manner which would disqualify the residence from obtaining the capital gains exclusion for the first $250,000.00 of capital gains, there may still be a significant reduction if not elimination of capital gains tax. Upon the death of your uncle, the residence would be revalued as of his date of death.  It would be this value which is to be compared to the sales price last year.  In addition to this value, there should be added any capital improvements to the residence.  This is your starting point. Next, an analysis should be made based upon the language of the trust as to whether the language which permits your aunt to live there as long as she wants qualifies as a "life estate".  If it does, then your aunt has an interest in the residence which belongs to her and as such should qualify that portion of the sales price for capital gains exclusion treatment.  This value is determined by taking the IRS 7520 interest rate for the month of the sale and cross-referencing her age to that interest rate.  This will determine the percentage of the sales proceeds that are hers. The remaining portion of the sales proceeds should belong to the testamentary trust and may be subject to capital gains tax.  The trust hopefully specifies what will happen to those proceeds belonging to the trust (whether they remain in trust for your aunt or some other disposition of those funds). Great care and planning should be taken with the proceeds belonging to your aunt as without proper planning they will most likely be spent on her care in the nursing home.  Proper planning can preserve at least 1/2 of those funds for her care and qualify her for Medicaid in an expeditious fashion as possible. An attorney who specializes in Elder Law should be consulted to determine if the proper advance planning documents are in effect now (power of attorney) or whether perhaps a Guardianship may be necessary to preserve the assets of her estate. - Alfred Polizzotto, III... Read More

When the amount of damages recoverable in an action exceeds $5,000.00, the small claims courts cannot be used.  In Suffolk County, the District Court handles cases with damages up to $15,000.00.  The District Court has 6 courthouses in the 5 western towns of Suffolk County (Babylon, Brookhaven, Huntington, Islip & Smithtown)  You can find the locations of the Courthouses at the District Court website at http://www.nycourts.gov/courts/10jd/suffolk/dist/ .  If your damages are between $15,000.00 and $25,000.00, then the appropriate Court is County Court located at the Cromarty Court Complex, Criminal Courts Building - 210 Center Drive, Riverhead, New York 11901.   If your damages exceed $25,000.00, the appropriate Court would be Supreme Court. It is difficult to ascertain from your facts who the appropriate parties are to sue.  You should consult with a civil litigation attorney in your area for a detailed analysis to determine your rights and the persons to sue. - Alfred Polizzotto, III... Read More

The information below was extracted from the New York State bar Association pamphlet on "The Attorney's Role in Home Purchase Transactions" and sums up the answer to your question very well. Buying a house may be the most significant and largest purchase you will make. It also involves the law of real property, which is unique and raises issues and problems that are not obvious. An attorney knows how to deal with these issues and problems. An attorney also usually has more experience in dealing with them than any other service providers for the transaction. This applies both to a sale of a house and to a purchase. A typical purchase and sale of a house begins when the seller signs a brokerage contract with a real estate agent, usually in writing. When the broker finds a potential buyer, negotiations are conducted through the broker, most often acting as an intermediary. Once buyer and seller reach an informal agreement, they enter into a formal written agreement. Upstate, a real estate agent often prepares the offer or contract, subject to the approval of the parties’ attorneys; downstate, the seller’s attorney usually prepares the contract. The buyer then seeks – and usually obtains — a mortgage loan commitment. Title must be searched to satisfy both the buyer and his or her lender. Finally, the seller transfers the property to the buyer and the buyer pays the purchase price as the contract requires. It seems simple and uncomplicated. Without an attorney, though, the consequences of buying a house unwisely may be worse than purchasing a car that turns out to be a lemon, or making a stock investment that was unwise. Some of the reasons to have an attorney are dealing with the broker for example the seller may become liable to pay a commission if a sale does not occur or pay more than one commission.  Can the seller negotiate on his/her own behalf?  What are the broker's rights if the seller pulls the home off the market? Other reasons include analyzing tax consequences of a sale, dealing with issues on the contract such as how to take title to the property, inspections, alterations, where the deposit will be held during the closing, assistance in arranging financing and assistance with searching and insuring title to name but a few. Throughout the purchase and sale process, the interests of buyers and sellers directly conflict. A broker generally serves only the seller. A lender has its own agenda. The attorneys for buyer and seller have no such conflicting loyalties. Each serves only their own client’s best interests. An attorney’s advice and guidance are essential from the time you decide to sell or buy a house until the actual closing – and even after the closing if any issues or questions arise. -Alfred Polizzotto, III      ... Read More

While the statute of limitations is six years for breach of contract, there is something called a 'merger' clause, which essentially states that upon the closing, prior representations of the property's condition are merged and 'do not survive closing'. You should consult with a different attorney and review the mandatory property disclosure document and the contract of sale, along with the broker's paperwork. Gerry Wendrovsky, Esq.- Upper West Side Attorney www.upperwestsidelawyer.com  ... Read More

The motives for making the transfer in question should be examined carefully before making any transfer. Many times clients are interested in making a transfer and the real motivation behind the transfer is asset protection for long-term care needs. This is a very complex issue with the interplay of income tax, gift tax an Medicaid regulations not to mention protection of your parents' rights to continue to occupy the premises and retain real estate tax reductions. A thorough consultation should occur with an experiences elder law attorney before entering into this transfer.    Alfred Polizzotto III... Read More

It is difficult to ascertain without analyzing the documents you refer to in your question, but if a party waives their interests in a stipulation of settlement in connection with a divorce, they will be bound to that agreement unless it can be shown that the agreement was signed under duress or procured by fraud or some other circumstance which would permit the rescission of the agreement. If the agreement cannot be modified or rescinded as set forth above, then there would be no claim to the property cased upon her execution of the agreement waiving her interest in the property. - Alfred Polizzotto, III... Read More

This is a very common question.  You should be aware that an attorney can only represent one client.  Representing both the borrower and the lender would put the attorney in a conflict interest situation.  If you proceeded without retaining your own attorney, you would be representing yourself.  The bank's attorney is NOT your attorney. It could very well be that you will understand all of the paperwork that is presented to you and there will be no numbers on any document which need explanation.  As such, you may not need an attorney.  But I would certainly suggest that you retain an attorney to protect your interests. - Alfred Polizzotto, III... Read More