The New York State Department of Taxation and Finance has issued a Notice (N-10-7) titled "Changes to Powers of Attorney Accepted for Tax Matters Administered by the New York State Tax Department and the New York City Department of Finance".
The Notice is posted at http://www.tax.state.ny.us/pdf/notices/n10_7.pdf
A manuscript on the revised Statutory Short Form Power of Attorney and the revised Statutory Major Gift Rider, to be known as the Statutory Gifts Rider, both effective September 12, 2010, and the revised forms, can be accessed at http://www.firstamny.com/doc/Current_124.pdf
The Office of the Richmond County Clerk has issued a General Notice dated July 26, 2010 stating the following:
"Effective September 1, 2010, all new Actions for Foreclosure pursuant to Article 13 of the Real Property Actions and Proceedings Law must be accompanied by a fee of one hundred and ninety dollars ($190.00) in addition to the Index Number fee. [FN]
"The Office of the Richmond County Clerk is mandated to collect this additional fee on all Foreclosure Actions received by the Office on or after September 1, 2010.
"In order to avoid delay in handling and processing, all commencement papers and appropriate fees must be addressed to:
The Office of the Richmond County Clerk
Division of Law and Equity
130 Stuyvesant Place
Staten Island, New York 10301
Footnote: Section 5 of Part K of Chapter 56 of the Laws of 2010 amending CPLR Section 8018 reads as follows: "In an action to foreclose pursuant to Article Thirteen of the Real Property Actions and Proceedings Law, such Clerk is entitled to collect an additional fee or one hundred ninety dollars. Such fees are payable in advance"
Sales and Compensating Use Tax – New York State’s Department of Taxation and Finance has issued a Memorandum dated July 19, 2010 captioned “Sales and Compensating Use Tax Treatment of Certain Information Services”. According to the Memorandum, “[a]s a general rule, furnishing information created or generated from a common database, or information that is widely accessible, is a taxable information service”. The following are among the services listed in the Memorandum as being taxable information services for which sales tax must be collected, commencing September 1, 2010:
•“public records furnished (electronically or in paper format) by a private entity, such as a document retrieval service (examples include real property deeds…however, public records sold by a governmental entity, such as a county clerk, are not subject to tax…) as an “information service”
•“real property information databases…”
The Memorandum specifically deals with abstracts of title:
“..beginning on September 1, 2010, the sale of an abstract of title to real property is the sale of taxable information services. This includes the sale of an abstract of title to either a prospective purchaser of real property or to an attorney representing a prospective purchaser. However, opinions of title offered by an attorney are considered legal services and are not subject to tax. Therefore, the sale of an abstract of title to an attorney for use in conjunction with rendering an opinion of title or providing other legal services is a retail sale subject to sales tax as described herein.”
TSB-M-10(7)S is posted on the Department’s web site at
http://www.tax.state.ny.us/pdf/memos/sales/m10_7s.pdf
NYC/Real Property Income and Expense (RPIE) Statements – The City’s Department of Finance has posted the following announcement on its web site at http://home2.nyc.gov/html/dof/html/property/property_info_rpie.shtml:
“Starting with the 2009 RPIE due on September 1, 2010, owners of [income producing] properties subject to filing requirements but fail to file on time will face a penalty of up to 3% of the actual assessed value of their property. Furthermore, all filed RPIEs are subject to audit and erroneous filings will be penalized in accordance with the law”.
The authority to impose penalties for the failure to timely file an RPIE is contained in NYC Code Section 11-208.1 (“Income and Expense Statements”)
Pursuant to Chapter 416 of the Laws of 2009, the Administrative Judge for the Supreme Court, New York County, and the Statewide Coordinator for Electronic Filing, Uniform Court System, have issued an “Important Notice to Commercial Practitioners: Mandatory Electronic Filing” dated May 19, 2010, which was posted to the New York County Supreme Court’s website at http://www.nycourts.gov/supctmanh/MEF-Notice%20to%20CD.pdf. According to the Notice:
“Any mandatory commercial case commenced [in the Supreme Court, New York County] on or after May 24 [2010] must be electronically filed through the New York State Courts Electronic Filing System (‘NYSCEF”), as must subsequent filings therein. Mandatory commercial cases consist of certain commercial matters (not limited to Commercial Division cases) in which the amount in controversy is over $100,000 (exclusive of interest, costs, disbursements, counsel fees and punitive damages).
“Except to the extent that the rules provide otherwise, on and after May 24, the County Clerk and court clerks will not accept documents filed in mandatory commercial cases in hard copy form…”
The classes of cases for which mandatory electronic filing is required, when the amount in controversy is over $100,000, are listed in Chapter 416, posted at http://www.nycourts.gov/supctmanh/E-Filing.htm. The list includes “transactions
involving commercial real property” and “residential real estate disputes, including landlord-tenant matters, and commercial real estate disputes involving the payment of rent only”.
New York’s laws setting forth the elements of a claim of adverse possession were changed by Chapter 269 of the Laws of 2008 (“Chapter 269”), which amended various Sections of the Real Property Actions and Proceedings Law (“RPAPL”) and added RPAPL Section 543 (“Adverse Possession; how affected by acts across a boundary line”). The changes in the law made by Chapter 269 apply to claims filed on or after July 7, 2008. The Appellate Division, Third Department, held that the law in effect prior to July 7, 2008 applied in an action commenced in March 2009. The complaint in the action alleged that the prescriptive periods for the claimed easement “commenced and concluded prior to” July 7, 2008 and “[s]hould plaintiffs succeed in proving their claims, titles to the easement would have vested prior to the effective date of the amendments…‘[they] may not be disturbed retroactively by newly-enacted or amended legislation’ [citations omitted]”. Barra v. Norfolk Southern Railway Company, decided July 8, 2010, is reported at 2010 WL 2680107.
The Appellate Division, Fourth Department, has also ruled that the laws in effect prior to July 7, 2008 apply to claims of adverse possession which have ripened into title prior to that date. Franza v. Olin, decided March 19, 2010, is reported at 897 N.Y.S. 2d 804.
According to a Notice issued by New York City's Department of Finance, the Department has implemented a program "to allow property owners, lienors or their designees (or executors/administrators of the estates of owners) to register to receive electronic notification when a deed or deed-related document, or a mortgage, or mortgage-related documents, affecting an ownership interest in real property has been recorded against a property in the City of New York. This program will alert registered property owners when documents are recorded without their knowledge and will allow them to take steps to limit the harm caused by the recording of a fraudulent document".
Further, according to the Notice, "Property owners, lienors or their designees, or executors/administrators of the estates of owners, who have an interest in real property in the City of New York can register using the borough, block and lot number or the address of the property to receive an email, text message or letter each time a deed, mortgage or related property is recorded against the registered property".
The following have been posted to ACRIS:
Program Description http://nyc.gov/html/dof/html/pdf/recorded_documents/notice_of_rec_descrip.pdf
Frequently Asked Questions http://nyc.gov/html/dof/html/pdf/recorded_documents/notice_of_rec_faq.pdf
Online Application http://a836-acris.nyc.gov/nrd/
Form for Notice by Mail http://nyc.gov/html/dof/html/pdf/recorded_documents/notice_of_rec_doc.pdf
New York State's Department of Taxation and Finance has issued an Advisory Opinion dated June 16, 1010 (TSB-A-10(3)R) on the following issues, as stated in the Opinion:
"The petition asks whether a deed recorded as security for the repayment of debt, can be assigned to another lender, without payment of additional real estate transfer tax (RETT) or mortgage recording tax (MRT). We conclude that it can. The petition also asks whether such an assigned deed can be treated as a mortgage and modified by increasing the amount of the debt that is secured and by changing the form of the security instrument to a mortgage. We conclude that this is permissible, subject to payment of RETT and/or MRT. Further, the petition asks if the mortgage recording tax upon the assignment is limited to the additional or new debt secured by the modified mortgage. We conclude that the tax is so limited".
The Advisory Opinion is posted at http://www.tax.state.ny.us/pdf/advisory_opinions/multitax/a10_3r.pdf
The Plaintiff in the case Wells Fargo v. Tyson commenced an Action to foreclose its mortgage. The Defendant notified the Plaintiff that he had discontinued utility services at the property and the winterization and securing of the dwelling. The Defendant advised the Plaintiff that the property was not, however, abandoned; the Defendant also visited the property regularly and had a neighbor watch the property in his absence. After a private property inspection and preservation company employed by the Plaintiff found the front door of the home open and the premises unsecured, the Plaintiff directed that the locks be changed and the house secured and winterized. The Plaintiff insisted that it had the right under the terms of the mortgage to enter the premises at any time without consent, which happened at least twice, to inspect and protect its security. The Defendant claimed that damage was caused to the property and various items of personal property were taken.
The mortgage provided that the lender could enter and inspect the property in a reasonable manner and at reasonable times on notice, but there was no indication that notice to the Defendant was provided. The mortgage also provided that if the property was abandoned the mortgagee could secure and repair the property, including change the locks. The Supreme Court, Suffolk County, ruled that all actions taken by the Plaintiff were required to be reasonable and entry into the property had to be on notice to the Defendant. It held that the Plaintiff had committed a trespass and awarded the Defendant $200 in damages for the trespass, $4,892 for the value of the personal property that was lost, and exemplary damages of $150,000. The decision, on March 5, 2010, is reported at 2010 WL 753360.