At Klose & Associates, we can represent you in connection with real estate transactions and litigation involving many types of property. Rockland County real estate lawyer Peter Klose is experienced in matters that include buying and selling homes, facilitating residential and commercial real estate closings, preparing real estate contracts and purchase agreements, investigating and buying distressed real estate, litigating real estate disputes involving adverse possession, breach of contract, and neighbor disputes, and handling Article 78 cases and foreclosures.Common Issues Affecting Real Estate in New York
Buying or selling a home or other residential or commercial property is a big financial decision for most people. There are numerous legal considerations when making a large purchase. For example, title does not need to be free from every defect, but it must be free from unreasonable or material defects. Under New York law, courts will look at whether a material defect or encumbrance is unreasonable in determining whether it will render title unmarketable. Problems that could render title unmarketable include restrictive covenants, liens, mortgages, home equity lines of credit, easements, judgments, errors in the chain of title, and encroachments as shown on a survey.
As a buyer, you will want to conduct a title search to make sure that clear and marketable title is being conveyed. A real estate attorney in the Rockland County area can put language into the purchase and sale agreement, stating that a seller must convey both marketable and insurable title. If the seller is unable to deliver marketable or insurable title, the buyer then may be able to terminate the contract and receive reimbursement of certain fees, such as mortgage and title search fees, as well as the return of their down payment.
A seller's attorney, meanwhile, may ask for certain provisions requiring the buyer to accept title subject to particular encumbrances and defects. For example, if there is an easement that runs with the land that the seller is unable to remove, it may be necessary for a buyer interested in the property to purchase it "subject to" the easement.
In some cases, lenders will not provide a buyer with financing if there are encroachments and encumbrances. It is important for a Rockland County real estate attorney to take this possibility into account when preparing the contract. A contract of sale that requires a buyer to take the property subject to defects or encroachments should also include language about a contingency for financing. Sometimes a title insurance company will provide the lender with insurance coverage in spite of a defect.
There may be restrictions in zoning or how the property is to be used. In addition to following zoning regulations, the language of the contract may reflect other obligations related to property use. For example, when a seller sells an apartment building, the buyer may assume that they are not required to continue those tenancies. However, the seller's attorney can modify a contract of sale by including a rider or language that requires the buyer to take title subject to existing leases or tenancies to avoid problems.
Sometimes serious disputes arise in connection with the purchase and sale or use of real estate. Real estate litigation can involve multiple parties and concern many different laws and regulations. It is critical to retain an experienced real estate litigator to represent you. Different remedies may be available, depending on the nature of the wrong. In some cases, it may be appropriate to seek damages. However, depending on the circumstances, it may be possible to obtain rescission of a real estate contract on the basis of misrepresentation, duress, mutual mistake, or lack of capacity. Rescission cancels the contract and puts the parties back in the position in which they were prior to entering into the contract.
A common question that arises from home owners centers around the concept of “adverse possession.” Adverse possession is a method of gaining title to property. Although it is not the favored means to procure land, a person may acquire title to land by adverse possession if she holds the property in a manner that conflicts with the rights of the true owner for a period of time. There are five elements that establish a claim of adverse possession. Possession must be 1) hostile and under claim of right, 2) actual, 3) open and notorious, 4) exclusive, and 5) continue for the specified period as determined by jurisdiction. Adverse possession is generally a question of fact to be decided by a court, so it is very important to consult with a competent litigator willing to investigate all of the circumstances.
In other cases, it may be possible for a party to a real estate contract or another written instrument to ask the court for the equitable remedy of reformation. This allows the court to change the written instrument to conform to the parties' understanding.
Sometimes a municipality makes a decision about real estate that causes problems for a property owner. Article 78 of the Civil Practice Law and Rules provides procedures to challenge the determinations of public bodies, officers, and administrative agencies in New York. We can represent you in an Article 78 proceeding to review a decision of a public body, such as a municipality, that was based on insufficient proof. We can also help you take action to seek a review of a decision that was clearly incorrect, to force a public body to act, or to stop a public body from exceeding its authority.Consult an Experienced Real Estate Lawyer in Rockland County or Beyond
Klose & Associates represents clients in connection with real estate and land use matters in Rockland County and surrounding areas. Mr. Klose is a member of the Village of Nyack Planning Board, which allows him to keep abreast of new developments in the law that may affect zoning and land use. We also represent clients in areas such as Yonkers, Mount Vernon, New Rochelle, Peekskill, Rye, Nyack, Ramapo, Orangetown, Hempstead, Stony Point, Spring Valley, and New City. Contact us at (845) 727-7727 or via our online form.