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.Frequently Asked Questions
- What is Title Insurance?
- Why Does my Closing Disclosure say That an Owner’s Policy is “Optional?”
- What is Private Mortgage Insurance (PMI)?
- Is it Legal to Rent Out my Home on Airbnb?
Title insurance is a contract where an insurer guarantees a lender or a homeowner that there are no known claims or defects in title caused by past events such as mortgages, liens, or possession of property by another person not the owner. To learn more about this insurance click here. Title insurance companies search public records to develop and document the chain of title and to detect known claims (defects) in the title. For example, the title search may identify an old home equity loan that is still outstanding or that a contracting firm filed a mechanics lien against the owner years before. If they missed those defects, and they are discovered later, the title insurance company would pay to have them fixed (indemnify you), even if it meant litigation.
Banks write “optional” because they do not “require it,” but very few real estate transactions ever occur without. To learn the reasons, hire a competent real estate attorney, such as Peter Klose, to help you understand this type of insurance.
PMI is insurance designed to protect lenders against losses should the borrower default and is required by lenders for virtually all borrowers who put less than ten percent (10%) down. It is important to hire a competent real estate attorney, such as Peter Klose, to help you understand this type of insurance. It has nothing to do with who owns or has “title” to the property and it does not protect you from title claims. It also has nothing to do with homeowners’ insurance that is designed to indemnify you for fire, theft and negligence.
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. To read about this issue further, review this post by Peter Klose Airbnb and the sharing economy: is it legal to rent out my home? 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. There are many tourist destinations that use licensing, taxation, and zoning to regulate how you may rent your property on a short-term basis. If you are considering such a business model, check your local laws, condominium papers, and the rules of your local housing association. Following the law is critical to listing on Airbnb, because you (and not Airbnb) can be held solely liable for the illegal listing.