The mortgage tax in Warren County will increased from $1.00 to $1.25 for each $100 secured by a mortgage efffective as to mortgages recorded on and after October 1, 2008.
See http://www.tax.state.ny.us/pdf/memos/mortgage/m08_1r.pdf
Under Real Property Law ("RPL") Section 294-b ("Recording brokers affidavit of entitlement to commission for completed brokerage services"), a duly licensed real estate broker asserting entitlement to a commission for producing a person or entity who purchases or leases real property may file an affidavit of entitlement to a commission with the recording officer of the county in which any of the real property in question is located. The filing of the affidavit does not invalidate the transfer or lease of real property, does not create a lien, and shall be discharged after one year. Section 294-b has been amended by Chapter 436 of the Laws of 2008, effective January 1, 2009. First, the scope of a notice of entitlement has been expanded to include a claim for a commission in connection with the conveyance of an interest in a cooperative unit. Second, the affidavit of entitlement, while still not a lien, will be recorded in the "lien docket". Third, when the subject property is a one-to-four family dwelling, an individual condominium unit or an individual cooperative apartment, used or intended to be used, wholly or partially, as a residence, and the broker's commission is not paid at closing, "the lesser of the net proceeds of the sale or the amount of the unpaid portion of the compensation agreed to in such written contract [the brokerage agreement] shall be deposited by the seller… with the recording officer in whose office the affidavit was recorded…until the rights of the seller and broker to such monies has been determined by order of a court of competent jurisdiction…", provided that (i) the brokerage contract includes a notice, as required by Chapter 436, (ii) the affidavit has been recorded, and (iii) the broker serves a copy of the affidavit on the seller prior to closing, as required by the statute. The failure to deposit monies with the recording officer does not "create a lien or encumbrance against any real property" and does not invalidate "any transfer of real property".
Transfer Tax/Peconic Bay Region (Suffolk County) - Article 31-D of New York State's Tax Law ("Tax on Real Estate Transfers in the Peconic Bay Region"), has been amended by Chapter 349 of the Laws of 2008, signed into law and effective on July 21, 2008. An amended Peconic Bay Region Community Preservation Fund transfer tax return ("Return"), which must be printed and filed on 8 ½ by 14 paper, can be obtained at http://www.co.suffolk.ny.us/upload/countyclerk/pdfs/revisedcpf072908.pdf
New subdivisions 4 and 5 have been added to Tax Law Section 1449-ee ("Exemptions"), providing an exemption on the purchase of "primary residential property" in the Towns of Southampton, East Hampton and Shelter Island by one of more persons "each of whom is a "first-time homebuyer". For the exemption to apply, the purchase price of the property must be within 120% of certain "purchase price limits" and the buyer's "household income" must not exceed certain "income limits", as set forth in amended Section 1449-ee. This exemption is not available in the Towns of Riverhead and Southold. The exemption must be approved by the applicable Town on forms being issued. Line "m" Conveyance of real property as a primary residence where the grantee is a first-time homebuyer" on Part II ("Explanation of Exemption") of the Return must be checked when the exemption is claimed, and a copy of the Town approved application must be affixed to the Return.
Another exemption, applicable in all Towns subject to the Peconic Bay transfer tax, is in new paragraph "M" of subdivision 2 Tax Law of Section 1449-ee.
"M. Conveyances of real property to any tax exempt corporation, incorporated pursuant to the Not-For-Profit Corporation Law or the Private Housing Finance Law, where such conveyance is for the purposes of providing affordable housing opportunities.
For the purposes of this paragraph, 'affordable housing' shall mean housing opportunities exclusively for Town residents of the Towns whose income is at or below the median income for the Town". Line "n" of Part II of the amended tax return, "Conveyance of real property to a tax exempt, not-for-profit corporation for the purpose of providing affordable housing", will need to be checked to claim this exemption.
Since September 2005 a deed to a part of a tax lot has not been accepted for recording by the New York City Register without the prior completion of a tax lot subdivision.
There have been a limited number of exceptions to this requirement. For example, there need not be a prior tax lot subdivision, and the City Register will accept a deed to a part of a tax lot, when the City of New York, or any of its agencies, is the grantor. A tax lot subdivision has not been required when a deed to a part of a tax lot is executed by a referee in a foreclosure. In addition, no tax lot subdivision has been required when a deed conveys part of a tax lot consisting of either the volume of air space located above a horizontal plane or the land located only below a horizontal plane.
The City Register recently informed First American that a tax lot subdivision will be required before a deed to the volume of air space located above a horizontal plane or the land located only below a horizontal plane will be recorded. This requirement will take effect for all such deeds submitted for recording on and after September 1, 2008.
An Action was commenced to foreclose a mortgage, securing a thirty year note with an interest rate of 9 ½ percent, on the Defendant's home in a minority neighborhood. Judge Kramer of the Supreme Court, Kings County, had held on December 6, 2007 that the burden was on the Defendant to demonstrate that she was the victim of discriminatory lending. However, in this ruling, Judge Kramer held that "a mortgage granted to a minority buyer for the purchase of property in a minority area which carries an interest rate that exceeds nine percent [which he concluded is a "higher priced loan" under the federal Home Mortgage Disclosure Act's standards, for this mortgage and most other thirty year mortgages written after 2000] creates a rebuttable presumption of discriminatory practice" and the foreclosing lender "must demonstrate by a fair preponderance of the evidence that the mortgage was not the product of unlawful discrimination. If the lender is unable to do so, the foreclosure proceeding will be dismissed and the lender left to its remedies at law". The Court further stayed the proceedings since the Defendant is on active military duty and her attorney had asked to be relieved. M&T Mortgage Corp. v. Foy, decided May 1, 2008, is reported at 2008 WL 1915125.
The Defendant-homeowner brought a motion, pro se, for an Order vacating a judgment of foreclosure and sale and barring any attempt to sell her home. She alleged that the Plaintiff engaged in "predatory lending" under New York's Banking Law Section 6-l ("High-cost home loans"). Judge Palmieri of the Supreme Court, Nassau County, denied the motion and vacated the temporary stay that had been entered. The two mortgage loans being foreclosed were not "high cost" loans under the Banking Law; no proof was submitted that there was either fraud or a failure to disclose the loans' terms. Nor was proof submitted that the Defendant was protected by the Home Ownership and Equity Protection Act of 1994 (15 USC Section 1639). According to the Court, "…absent the violation of some statute or other relevant legal principle the law does not permit judges to simply ignore payment obligations voluntarily taken on by mortgagors even if it should have been evident to both lender and borrower that the loan was likely beyond the borrower's ability to repay". Alliance Mortgage Banking Corp. v. Dobkin, decided March 28, 2008, is reported at 2008 WL 1758864.
Under Bankruptcy Code Section 1146(a), "[t]he issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax". The United States Supreme Court, in a decision issued June 16, 2008, reversing the Eleventh Circuit Court of Appeals, held that the 1146(a) exemption from stamp taxes only applies to a transfer made by a Debtor in bankruptcy after confirmation of a plan of reorganization. In the case under review, the sale on March 16, 2004 of substantially all of the Debtor's assets under Code Section 363(b)(1) was made under a Bankruptcy Court Order providing that the transfer was exempt from Florida stamp taxes. The Chapter 11 Plan was filed on March 26, 2004, amended on July 31, 2004 and confirmed by the Bankruptcy Court on October 21, 2004. Before the plan of reorganization was confirmed, the State of Florida filed an objection, seeking the payment of State stamp taxes since the transfer was not "under a plan confirmed". The Bankruptcy Court held that the sale was exempt from Florida's stamp tax because the transfer was necessary to consummate the plan, and the Court of Appeals for the Eleventh Circuit affirmed that ruling. Florida Department of Revenue v. Piccadilly Cafeterias, Inc. is reported at 2008 WL 2404077.
The Appellate Division [1st. Dept.] held that a genuine issue of material fact existed as to whether a purchaser, with a right under a due diligence provision to "cancel a contract for any reason" is required to give a reason for canceling. The court held that the cancellation right was "rationally tied" to the right of inspection and did not necessarily give the purchaser the right to cancel without any reason.
Should we be amending our contracts to provide for purchaser's right to cancel with or without cause during a due diligence contingency period?
Schwartz v Cilmi & Associates 41 A.D.3d 317 839 N.Y.S.2d 55 [June 26, 2007]
Posted on behalf of ABRAHAM B. KRIEGER, ESQ.
Meyer, Suozzi, English & Klein, P.C.
990 Stewart Avenue, Suite 300
Garden City, New York 11530-9194
Under Civil Practice Law and Rules ("CPLR") Section 5203 ("Priorities and liens upon real property"), a judgment is a lien for ten years on real property of the debtor in the county in which the judgment is docketed. The judgment may be renewed for an additional ten years pursuant to CPLR Section 5014 ("Action upon judgment"), which provides that "[a]n action may be commenced…during the year prior to the expiration of ten years since the first docketing of the judgment. The judgment in such an action shall be designated a renewal judgment. The lien of a renewal judgment shall take effect upon the expiration of ten years from the first docketing of the original judgment".
In a case decided by the Appellate Division, First Department, the Plaintiff's judgment was docketed in New York County on October 23, 1991. Before the ten year lien period expired, the judgment creditor brought an action to obtain a renewal judgment. An Order renewing the judgment nunc pro tunc dated as of October 23, 2001 was docketed in 2005. In 2003, however, after the ten year lien period for the judgment had run and before the renewal judgment was docketed, the judgment debtor executed two mortgages on a condominium unit he owned in Manhattan. The mortgagees sought an order either vacating the nunc pro tunc treatment of the renewal judgment or declaring that the liens of their mortgages were prior to the lien of the renewal judgment. The Supreme Court, New York County, denied their petition, and the mortgagees appealed.
The Appellate Division reversed the Order of the lower court, granted the petition, held that the renewal judgment was entered as of the date it was granted, and declared that the liens of the mortgages were prior to the judgment. According to the Court, "[o]nce the county docket book reflected only [the judgment debtor's] expired lien, other creditors were fully entitled to rely upon that fact and make mortgage liens on the assumption that their mortgage liens would have priority". Gletzer v. Harris, decided March 13, 2008, is reported at 2008 WL 678589.
Absent an agreement to the contrary, a partnership dissolves on the death of a partner and the partnership, if it continues to do business, does so as a partnership at will. The Plaintiffs, heirs of general partners of two partnerships owning real property, claimed that they became partners with the other, surviving partners, and they brought an action to enforce their partnership rights. The Supreme Court, New York County, held that the Plaintiffs had only beneficial interests in partnerships at will; they were not partners because there was no agreement under which the Plaintiffs succeeded to the partnership interests. They only have the right to collect earnings, to a declaration of dissolution, and to an accounting. Sperber v. Rubell, decided February 27, 2008, was reported in the New York Law Journal on March 21, 2008.