Real Property Law Section Blog

Articles of Organization (“Articles”) for a newly formed limited liability company (the “LLC”), formed by a son and the daughter of the grantor of the deed in question, were executed on October 4, 2001 but not filed with New York’s Department of State (“Department”) until November 16, 2001. On November 2, 2001, before the Articles were filed, the mother of the two persons above-referenced executed a deed transferring the ownership of certain property to the LLC. The deed was recorded on December 3, 2001.

After the grantor died, representatives of the children of two predeceased children of the grantor asserted that the property was not properly conveyed to the LLC and should be distributed as an asset of the Estate. The Surrogate’s Court, Kings County, held that the conveyance was valid, holding that the LLC was operated as a valid “de facto” company prior to the filing of the Articles. The “de facto” company doctrine, traditionally applicable to corporations, applies “where there exists (1) a law under which the corporation might be organized, (2) an attempt to organize the corporation, and (3) an exercise of corporate powers thereafter”.

The Appellate Division, Second Department, reversed the Order of the Surrogate, holding the conveyance to be void because there was no attempt to file the Articles before the deed was executed. The Court of Appeals affirmed. According to the Court, while the de facto corporation doctrine applies to limited liability companies, “the formation of a de facto company requires a ‘colorable attempt to comply with the statutes governing incorporation’ prior to the exercise of corporate powers, including the filing requirement”. In this case, there was no bona fide attempt to file the Articles before the deed was executed. “Because an entity that is neither de facto nor de jure cannot take title to real property [citation omitted], there was no entity in existence capable of receiving title to the real property and the purported conveyance is therefore void”. Estate of Hausman, decided December 1, 2009, is reported at 13 N.Y. 3d 408.

The Board of Governors of the American Land Title Association (“ALTA”) has voted to withdraw its ALTA Form 21 Endorsement (the “Creditors’ Rights” Endorsement) from use effective as of March 8, 2010. The California Land Title Association has also decertified its version of the ALTA 21 Endorsement. Filed Creditors’ Rights endorsements have been withdrawn in Pennsylvania and New Jersey and withdrawal of the endorsements is being considered in a number of other states. A creditors’ rights endorsement has not been available in New York, New Mexico and Texas. First American and a number of other title insurers have announced that they will no longer afford creditors’ rights coverage outside of the coverage expressly afforded within the Covered Risks of the 2006 ALTA Policies.

The 2006 ALTA Policies insure, in the Owner’s Policy, against loss or damage sustained or incurred by the Insured by reason of “title being vested other than as stated in Schedule A or being defective” and, in the Loan Policy, against “(t)he invalidity, unenforceability, lack of priority, or avoidance of the lien of the Insured Mortgage upon the title,

(a) as a result of [resulting from] the avoidance in whole or in part, or from a court order providing an alternative remedy, of any transfer of all or any part of the title to or any interest in the Land occurring prior to the transaction vesting Title as shown in Schedule A [creating the lien of the insured mortgage] because that prior transfer constituted a fraudulent or preferential transfer under federal bankruptcy, state insolvency, or other similar creditors’ rights laws; or

(b) because the instrument of transfer vesting Title as shown in Schedule A [the Insured Mortgage] constitutes a preferential transfer under federal bankruptcy, state solvency, or similar creditors’ rights laws by reason of the failure of its recording in the Public Records (i) to be timely, or (ii) to impart notice of its existence to a purchaser for value or to a judgment or lien creditor”.

Section 15 (“Owner’s Policy to Foreclosing Lender”) of the Title Insurance Rate Service Association, Inc. (“TIRSA”) Rate Manual has been amended effective March 3, 2010. Former Section 15 read as follows:

“Whenever an application for an owner's policy is made within 5 years of the date of a loan policy insuring a mortgage by the existing insured lender and the lender (or its assignee or subsidiary) has acquired title by a Referee’s deed in foreclosure or conveyance in lieu of foreclosure of the insured mortgage, the charge for such insurance shall be seventy percent (70%) of the owner's rate as applied to the unpaid principal balance due on the previously insured mortgage, plus the full owner’s rate on any excess.

The provisions of this section do not apply to the issuance of a TIRSA Owner’s Extended Protection Policy”.

Section 15, as revised, now reads as follows:

“An owner’s policy issued to insure an insured lender, or its assignee or subsidiary, that is made within 5 years from the date of a loan policy, when the lender, or its assignee or subsidiary, has acquired title by a Referee’s deed in foreclosure or conveyance in lieu of foreclosure of the insured mortgage shall not be issued in an amount less than the lesser of:

(i) the fair market value of the real property; or
(ii) the unpaid principal balance due on the previously insured mortgage.

The charge for such insurance shall be seventy percent (70%) of the owner’s rate up to the unpaid principal balance due on the previously insured mortgage, plus the full owner’s rate on any excess.

The provisions of this section do not apply to the issuance of the TIRSA Owner’s Extended Protection Policy”.

The New York State Department of Taxation and Finance has issued Publication 577, "FAQS Regarding the Additional Tax on Transfers of Residential Real Property for $1 Million or More".

Publication 577 is posted at http://www.tax.state.ny.us/pdf/publications/real_estate/pub577.pdf

Information has been received that the Governor's draft Budget Bill includes a provision for the imposition of mortgage recording tax on the filing of a financing statement for a cooperative unit. The security interest evidenced by such a filed financing statement would not be able to be enforced without payment of the tax.

If included in the final enacted Budget Bill this change would take effect on the first day of the third month after it shall have become law and shall apply to financing statements filed on or after that date.

Selected laws affecting real property enacted in 2009:

A1132/S2350 Excludes non-business days from notice of eviction. Chapter 256

A1569/S2967 Incentives for construction of schools/condos in mixed const. Chap 234

A2002/S2493 Amend civil penalties for violation of admin orders re tenants. Chap 480

A2089/S3337 Establish conservation easements. Chap 296

A2369/S800 Subcontractor’s right to file claim. Chap 224

A2500/S2461 AG to compel compliance with GOL re money in trust. Chap 225

A4392/S1728 Delay effective date of POA to 9/1/09. Chap 4

A5753/S5551 “Mortgage” to include second lien if purchased by U.S. agency. Chap 432

A6017/S3847 Court to describe stipulation in summary proceeding. Chap 281

A6093/S2791A/Requires all residences to have CO detector. Chap 367

A6924/S3725 Regulation of mortgage loan originators. Chap 123

A7247/S2871 New owners for which administrator appointed. Chap 265

A8305/S2760 Reverse mortgage fairness act. Chap 259

A40007/S66007 Home mortgage loans, crime of mortgage fraud. Chap 507

Selected bills not enacted in 2009:

A1364/S4672 Revises Property Condition Disclosure Act [RPLS memo in support]
A1643/S41 Makes practising law without admission a Class-E felony [RPLS memo in support]
A3553/S5497 Requires applications for coops to be acted on in 45 days
A4300/S5445 Actions for UPL to include criminal as well as civil actions [RPLS memo in support]
A5362/S1933 Provides for recordation of modification of illegal restrictive covenants [+ several other bills] [RPLS memo in opposition]
A6086/S5815 Provides for licensing of title agents (NYSLTA bill) [RPLS memo in opposition]
A7127/S3550 Provides for licensing of title agents (NYSID bill) [RPLS memo in opposition unless amended]
A8404 Requires disclosure of title insurance service charges (RPLS bill) [RPLS memo in support]

To find copies of Bills, go to:

1. RPLS portion of NYSBA website: www.nysba.org, then "Sections," then "Real Property Law Section," then "Status of Pending Legislation" (search by bill number) (for RPLS memoranda go to "2008-2009 and 2009-2010 Legislative Memoranda") or go to

2. Senate website: www.senate.state.ny.us, then "Bill and Laws" or go to

3. Assembly website: www.assembly.state.ny.us, then "Bill Search and Legislative Information."

Karl B. Holtzschue, Co-Chairperson
Real Property Law Section, Committee on Legislation

The Federal Rules of Bankruptcy Procedure were amended effective December 1, 2009. According to the Judicial Conference of the United States, the changes “implement a consistent method of calculating time periods throughout the federal rules”.

For example, subsection “h” (“Stay of order authorizing use, sale or lease of property”) of Rule 6004 (“Use, Sale or Lease of Property”) has been amended to provide that “(a)n order authorizing the use, sale or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise”.

Similarly, subsection “d” (“Stay of order authorizing assignment”) of Rule 6006 (“Assumption, Rejection or Assignment of an Executory Contract or Unexpired Lease”) has been amended to provide that “(a)n order authorizing the trustee to assign an executory contract or unexpired lease under Section 365(f) is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise”.

Subsection “a” (Fourteen-day period”) of Rule 8002(“Time for Filing Notice of Appeal”) has also been amended and now provides that a notice of appeal may be filed “within 14 days of the date of the entry of the judgment, order or decree appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires”.

The time periods had been ten days.

Originating Dept: Meetings

Description: To publicize legislation signed by the Governor

Target Group: Real Property Law Section

Subject: LEGISLATIVE ALERT- NEW RESIDENTIAL MORTGAGE
FORECLOSURE LEGISLATION SIGNED INTO LAW

Message:

Enactment of
New Mortgage Foreclosure Legislation

The New York State Legislature has passed and Governor Patterson has signed Program Bill No. 46 to significantly expand the scope of the mortgage foreclosure legislation enacted in 2008 that pertained to subprime loans.

Also known as S66007/and A40007, the legislation, which takes effect immediately, makes many important changes in the law and, most importantly, expands the use of early mandatory settlement conferences to include all home loans.

Attached is a copy of the Bill, the Sponsors’ Memorandum and the Governor’s message. Here are some of the major points covered by the legislation:

• Expands the 90-day pre-foreclosure notice currently sent for subprime loans to include all home loans, including loans on cooperative apartments.

• Requires lenders who serve a 90-day notice on a homeowner to make, within three days of that service, a regulatory filing with the Banking Department with specified information to allow the Banking Department and the Division of Housing and Community Renewal to provide targeted assistance to distressed homeowners during the pre-foreclosure period and closely monitor foreclosure statistics

• Expands the scope of early mandatory settlement conferences to include borrowers of all home loans and not just borrowers with subprime loans and requires both plaintiffs and defendants to negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible

• Establishes protections for tenants in foreclosed properties by requiring that they receive written notification of the foreclosure action and the change in ownership of the property, and be permitted to remain in their home for the remainder of their lease term or 90 days, whichever is longer, provided that such lease requires the payment of rent that is not substantially less than fair market rent

• Requires plaintiffs in a foreclosure action who obtain a judgment of foreclosure and sale to maintain the foreclosed property so that it does not pose a blight or nuisance, or create a blighting influence on neighboring properties -- if the property is occupied by a tenant, the plaintiff must also maintain the property in a safe and habitable condition

• Prevents brokers who perform distressed property consulting services from accepting upfront fees

• Permits the court to award reasonable attorneys’ fees to a prevailing borrower in a foreclosure action

This is a brief summary of the major points covered by the legislation and many of you will want to read the entire Bill.

To view/download the Governor’s Message, the bill and memorandum, go to http://www.nysba.org/RPLSLegislation

State of New York | Executive Chamber
David A. Paterson | Governor

The Westchester County Clerk is instituting a new web-based Property Records Electronic Portal (“PREP”) System. Every document presented to the Westchester County Clerk’s Office for recording in its Division of Land Records on and after January 1, 2010 must be accompanied by an electronic cover page and, when applicable (such as when a deed, lease or easement is being recorded), by certain other forms (“Tax Forms”) which are to be completed in and printed from PREP. The web site for PREP is http://prep.westchesterclerk.com.

The Tax Forms required to be generated in PREP include the New York State Department of Taxation and Finance’s “Combined Real Estate Transfer Tax Return, Credit Line Mortgage Certificate and Certification of Exemption from the Payment of Estimated Personal Income Tax” (Form “TP-584”), and the New York State Board of Real Property Services “Real Property Transfer Report” (Form “RP-5217”). It is understood that the “Real Estate Transfer Tax Return Supplemental Schedules” (Form TP-584.1) to Form TP-584 will be generated by PREP when required for the transaction in question.

The County Clerk has advised that “in exceptional circumstances only our office will accept RP-5217 and TP-584 forms which were not created on the PREP System. However, the circumstances must be exceptional and outlined in a written request to our office”.

Form IT-2663, the “Nonresidential Real Property Estimated Income Tax Payment Form”, is not completed in PREP. Mount Vernon and Yonkers transfer tax returns, for instruments transferring an interest in real property in those Cities, will as of a later date be completed in PREP.

A PREP generated form can be marked with cross-outs and corrections so long as the changes have been initialed by the necessary parties, the form has been edited in PREP to incorporate the changes, and both the unsigned, corrected form printed from PREP and the executed form with the cross-outs and the corrections are presented at the same time to the County Clerk’s Office.

The title company submitting a document for recording in the Division of Land Records will typically prepare the electronic cover page. When required for the document being submitted for recording, it can also on request prepare the Tax Forms in PREP, for its applicable service charge. However, when Tax Forms are prepared in PREP by other than the submitting title company, the Tax Forms must be “assigned” in PREP to that title company in advance of closing to enable the cover page to be prepared. Without the Tax Forms being “assigned” in PREP, the submitting title company will not be able to prepare the cover page and submit the related instrument for recording.

Timely submission for recording is necessary to avoid being assessed interest and penalties on any New York State Transfer Tax that is due. That transfer tax must be paid within fifteen days of the date of the transfer or interest and penalties will be charged.

There is a link to a PREP Test System on the web page referenced above.

Form MT-15 ("Mortgage Recording Tax Return") is used to compute New York State's mortgage recording tax when a mortgage encumbers property in more than one locality and different rates of mortgage recording tax apply. A revised Form MT-15, effective December 1, 2009, has been issued by the New York State Department of Taxation and Finance. The revised form sets forth the mortgage recording tax rate in effect in each County as of December 1, taking into account the change in the mortgage tax rate in Dutchess County on December 1 to $1.05 for each $100.00 of principal indebtedness secured. Revised Form MT-15, with Instructions, is posted at http://www.tax.state.ny.us/pdf/2009/mortgage/mt15_1209.pdf