Real Property Law Section Blog

The real property tax rates for each $100 of assessed valuation for July 1, 2007 – June 30, 2008 are 15.434 for Class One properties, 11.928 for Class Two properties, 11.577 for Class Three properties, and 10.059 for Class Four properties. Class One generally includes one-to-three family residential real property, small stores and offices with one or two apartments attached, vacant land zoned for residential use, and most condominiums that are not more than three stories. Class Two includes all other real property that is primarily residential, such as cooperative buildings. Class Three includes utility real property. Class Four includes all commercial and industrial real property not within the other three tax classes. The rates for this and prior fiscal years are posted on the Department of Finance's Web Site at http://nyc.gov/html/dof/html/property/property_rates_taxrates.shtml

Inserting "on or about" in the contract of sale before the closing date is advisable because it merely reflects the case law that allows either party reasonable adjournments.

Inserting "on or before" or "no later than" has been held not to imply that time is of the essence. Whitney v. Perry, 208 A.D.2d 1025, 617 N.Y.S.2d 395 (3d Dept. 1994) (provision for closing "no later than" 60 days after scheduled date did not make time of the essence); DeCicco v. Staehle, 11 A.D.3d 425, 783 N.Y.S.2d 380 (2d Dept. 2004) ("on or before" closing date did not make time of the essence); Lightle v. Becker, 794 N.Y.S.2d 415 (2d Dept. 2005) (closing "on or about 7/10, but not later than 8/10" did not make time of the essence; sellers entitled to cure title two weeks later).

The Court of Appeals has agreed and has now settled the matter. ADC Orange, Inc. v. Coyote Acres, Inc., 7 N.Y.3d 484; 857 N.E.2d 513; 824 N.Y.S.2d 192 (2006) (phrase "in no event later than" insufficient to make time of the essence).

The parties should say "time of the essence" in the contract of sale if that is what they mean, but it is not customary to do so.

In May 2007 the Office of the Rockland County Clerk issued a Bulletin announcing that "(e)ffective June 1, 2007 documents will not be returned to filers unless an appropriately sized pre-addressed envelope, which contains adequate pre-paid postage stamps, accompanies them. If you would like to make alternative arrangements for return, please contact us at 845-638-5221 prior to submitting documents". The New York State Land Title Association has since then been advised that the Clerk's Office will, for now, return documents notwithstanding the lack of the pre-addressed and stamped envelope. However, at some unspecified point in time compliance with the new procedure will be required.

Under a contract of sale, property in Kings County was to be conveyed subject to zoning and subdivision laws and regulations, provided that they did not render title unmarketable and were not violated by the existing buildings and improvements on the property and their use. After the contract was executed but before the scheduled closing date the property was down-zoned. As a result of the change in zoning the Plaintiff-Buyer sought return of his down payment, and the Defendants-Sellers sought an award of liquidated damages for breach of the contract. The Supreme Court, Kings County, granted the Defendants' motion for summary judgment and awarded them liquidated damages pursuant to the contract's terms. The contract was not conditioned on the zoning remaining unchanged and the Plaintiff, a licensed real estate broker and developer, could have inquired as to pending zoning changes before entering into the contract. Defendants had no information that was unavailable to the general public. Dunn v. Arniotes, decided May 29, 2007, is reported at 2007 WL 1615120.

Columbia and Sullivan Counties have enacted legislation to extend their County mortgage recording taxes.

The Columbia County mortgage recording tax of $.50 for each $100 of principal debt secured has been extended to apply to mortgages recorded prior to December 31, 2009. The total tax imposed on mortgages on real property in Columbia County will continue to be $1.25 for each $100 secured.

The Sullivan County mortgage recording tax of $.25 for each $100 of principal debt secured has been extended to apply to mortgages recorded prior to May 23, 2010. The total tax imposed on mortgages on real property in Columbia County will continue to be $1.00 for each $100 secured.

See http://www.tax.state.ny.us/pdf/memos/mortgage/m07_1r.pdf and
http://www.tax.state.ny.us/pdf/memos/mortgage/m07_2r.pdf

By Karl B. Holtzschue

In a 1999 survey of caveat emptor case law, I found that purchasers won only 47 of 130 cases. In a recent update, I found that purchasers won only 1 of 22 cases.

The Property Condition Disclosure Act (PCDA) became effective March 1, 1992, requiring sellers to deliver a 48 question Property Condition Disclosure Statement or give the purchaser a $500 [edited 8/10/07 by NYSBA] credit against the purchaser price at the closing. I summarized the law of caveat emptor and the cases under the PCDA in my article, Holtzschue, "The Purchaser Hasn't Got a Ghost of a Chance: Update on PCDA Cases and PCDA Revision," 35 N.Y. Real Prop. L.J. 7 (Winter 2007). [For a list of current articles in the N.Y. Real Property Law Journal click here.] In my article, I noted that purchasers had won 3 cases and lost 10, a somewhat better performance than under the common law of caveat emptor.

Since the article cited above, there have been six more cases. The purchasers won 2 and lost 4, bringing the running total to 5 wins and 14 losses for the purchasers. Following is a brief summary of those cases:

Middleton v. Calhoun, 13 Misc.3d 949, 821 N.Y.S.2d 444 (County Court Rensselaer County 2006) (McGrath, J.) (9/19/06) (purchaser failed to prove fraud in the inducement or that PCDS answer as to septic system was false; purchaser failed to inspect; PCDA did not create statutory cause of action)

McMullen v. Propester, 13 Misc.3d 1232A, 831 N.Y.S.2d 354 (Supreme Court Yates County 2006) (Falvey, J.) (10/30/06) (complaint that sellers knew septic system was faulty, despite disclaimer in PCDS, and actively concealed defect and odor, survived motion to dismiss complaint) P WON

Ercole v. McGay 13 Misc.3d 144A, 831 N.Y.S.2d 359 (Supreme Court, App. Term, 2d Dept. 2006) (Angiolillo. J.P.) (Suffolk County 11/29/06) (having elected to provide $500 credit in lieu of PCDS, seller had no duty to speak; seller did not actively conceal electrical and plumbing work not in accordance with Town Code)

Brady v. Posse, 14 Misc.3d 1232A, 2007 N.Y. Misc. LEXIS 416 (Civil Court Richmond County 2007) (Straniere, J.) (2/16/07) (purchaser did not prove seller knew of basement water condition and mold; seller elected to provide $500 credit in lieu of PCDS)

Ayres v. Pressman, 14 Misc.3d 145A, 2007 N.Y. Misc. LEXIS 704 (Supreme Court, App. Term, 2d Dept. 2007) (Rudolph, P.J.) (Orange County 3/5/07) (seller knew septic system defective and located partially on neighbor's property; purchaser won damages of cost of title search and mortgage application fees; seller gave PCDS) P WON

Rivietz v.Wolohojian, 38 A.D.3d 301, 832 N.Y.S.2d 505 (1st Dept. 2007) (Mazzarelli, J.P.) (New York 3/15/07) (because condominium purchasers had opportunity to inspect, had detailed report by their architect and there was no evidence of false representations, there was no justifiable reliance to support a claim of false representation)

The courts have split as to whether the PCDA created a statutory cause of action:

(1) The PCDA did NOT Create a Statutory Cause of Action: Malach (statute incomprehensible; did not specify remedy); Korik (citing Malach); Renkas (proper claim is common law fraudulent misrepresentation; defense is no justifiable reliance); Short (cited Renkas); Bishop (only viable cause of action is common law fraud in the inducement; Middleton (5 cases)
(2) The PCDA DID Create a Statutory Cause of Action: Gabberty; Fleischer (purchaser won); Delano (implied; purchaser won); Calvente (purchaser won); McMullen; Ayres (implied, purchaser won) (4 cases)

In light of the questions raised in the PCDA opinions about whether the PCDA established a statutory cause of action, shouldn’t the PCDA remedy sections be clarified?

The legislative history of an amendment (and perhaps the text of the remedies sections as well) could recite that the legislature intends to create a statutory cause of action similar to a common law action for fraudulent misrepresentation. The elements of the statutory cause of action would be: (1) a representation by the seller in the PCDS that the seller had actual knowledge was false when made; (2) the misrepresentation was made willfully, not negligently; (3) any representation made in a PCDS is deemed to be made to induce the buyers to rely on it; (4) the buyer must have justifiably relied on the misrepresentation; and (5) the buyer must have suffered actual damages.

Clarification of the existence of a statutory remedy under the PCDA would seem to be a benefit to judges, not to mention practitioners.

Chapter 458 of the Laws of 2007, signed into Law on August 1, adds new Section 1320 ("Special summons requirement in private residence cases") to the State's Real Property Actions and Proceedings Law. This Section requires that the summons in an action to foreclose a mortgage on residential property with not more than three units contain the following notice, in bold-face:
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NOTICE

YOU ARE IN DANGER OF LOSING YOUR HOME

If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, a default judgment may be entered and you can lose your home.

Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property.

Sending a payment to your mortgage company will not stop this foreclosure action.

YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT.
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Chapter 458 also amended Subdivision (g) (3) (iii) of Civil Practice Law and Rules Section 3215 ("Default judgments") to extend to "residential mortgage foreclosure actions" the requirement that a copy of the summons be again mailed to the defendant at least twenty days before entry of a default judgment when the defendant is a natural person who has defaulted in the Action.

Chapter 458 is effective "immediately".

The New York State Department of Taxation and Finance has announced that the interest rate to be charged for the period October 1, 2007–December 31, 2007 on late payments and assessments of mortgage recording tax and the State's Real Estate Transfer Tax will be 10% per annum compounded daily. The interest rate to be paid on refunds of those taxes will be 7% per annum compounded daily. The interest rates are published at http://www.tax.state.ny.us/press/2007/int0807.htm.

Chapter 556 of the Laws of 2007, authorizing the County of Columbia, acting through its local legislative body, to adopt a local law imposing a transfer tax took effect on August 15. The tax, to be payble by the grantor, is to be $1.00 for each $500 of consideration or fractional part thereof. The first $150,000 of any single family residence will be exempt.

The Chapter provides that "[s]uch local law shall apply to any conveyance occuring on or after the first day of a month to be designated by such legislative body, which is not less than sixty days after the enactment of such local law, but shall not apply to conveyances made on or after such date pursuant to binding written contracts entered into prior to such date, provided that the date of execution of such contract is confirmed by independent evidence such as the recording of the contract, payment of a deposit or other facts and circumstances as determined by the treasurer".

Chapter 308 of the Laws of 2006, the "Home Equity Theft Prevention Act, in addition to amending Banking Law Section 595-a ("Regulation of mortgage brokers, mortgage bankers and exempt organizations") and adding Section 265-A ("Home Equity Theft Prevention") to the Real Property Law, added Section 1303 ("Foreclosures; required notices") to the Real Property Actions and Proceedings Law requiring the plaintiff in a mortgage foreclosure to deliver with the summons and complaint a notice, on a separate page in bold, fourteen-point type printed on colored paper that is a color other than that of the paper on which the summons and complaint are printed, captioned (in bold twenty-point type) "Help for Homeowners in Foreclosure" containing text set forth in the Act. Chapter 154 of the Laws of 2007, effective July 3, 2007, limits this requirement to mortgage foreclosures involving residential real property consisting of owner-occupied one-to-four family dwellings.

Chapter 596 of the Laws of 2006, the "Hudson Valley Community Preservation Act of 2007", signed into law by Governor Spitzer on August 15 and effective on January 1, 2008, authorizes Towns and Cities within the Counties of Putnam and Westchester to establish Community Preservation Funds. To provide a source of revenue for such Funds, the Act adds Article 33-B to the Tax Law, authorizing each Town and City in those Counties to enact, subject to approval by referendum at a November general election, a Local Law imposing a transfer tax of up to two percent (2%) of consideration on the conveyance of real property in such Town or City or an interest therein when the consideration exceeds $500. Among the exemptions to be applied is "[a]n exemption from the tax which is equal to the median sales price of residential real property within the applicable town or city, as determined by the Office of Real Property Services pursuant to Section 425 of the Real Property Tax Law…". Returns will be required to be filed, and any tax due paid, to record an instrument conveying real property or an interest therein within the Town or City adopting the transfer tax.

The information below was received from the New York State Department of Taxation and Finance:
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The following address is to be used if sending Real Estate Transfer Tax (RETT) returns via the U.S. Postal Service:

NYS Tax Department
RETT Return Processing
PO Box 5045
Albany, NY 12205-5045

If you choose, you may use a private delivery service, instead of the U.S. Postal Service to file your RETT return and pay tax. If sending RETT returns via a private delivery service, please use the following address:

NYS Tax Department / Misc. Tax / RETT Unit
Building 8, Room 657
W.A. Harriman Campus
Albany, NY 12227

If, however, at a later date, you need to establish the date you filed your return or paid your tax, you cannot use the date recorded by a private delivery service unless you used delivery service that has been designated by the U.S. Secretary of the Treasury or the Commissioner of Taxation and Finance. Currently designated delivery services are listed in Publication 55, Designated Private Delivery Services.

Web address for Publication 55: www.tax.state.ny.us/pdf/publications/general/pub55_105.pdf

Chapter 544 of the Laws of 2007, signed into Law on August 15, 2007 and effective the 90th day after its enactment, authorizes the Town of Fishkill to pass a Local Law establishing a Community Preservation Fund and imposing a transfer tax of up to 2% of consideration on the transfer ot real property,or an interest therein, when the property is located in whole or in part in the Town.The transfer tax will be payable by the grantee.

New Article 31-A-2, "Tax on Real Estate Transfers in the Town of Fishkill", was added to the Tax Law by Chapter 544.

Among exemptions from tax is an exemption "equal to the median sales price of residentail real property within the applicable county, as determined by the office of real property services pursuant to RPTL Section 425.."

The Dutchess County Clerk has issued a notice advising that the mortgage recording tax rate in that County will increase effective November 1, 2007 from $1.05 to $1.30 for each $100 and each remaining major fraction thereof of principal indebtedness secured.

The County Clerk notes that the tax is applied based on the time and date of recording, not the date on which the mortgage is executed.

Dear ACRIS Customer,

The Department of Finance is excited about the next major release of ACRIS (Release 4.0), which is scheduled to go into production on December 3, 2007. I wanted to update you about one of the enhancements that will be included in this release.

As of December 3, 2007 when a transaction is sent back to the "Presenter", which contains both accepted and rejected documents, the "Presenter" will only return the rejected documents to the Borough Office for processing, once they have been corrected.

All documents within a transaction (which contains both accepted and rejected documents) will be returned to the "Presenter" parties of the transaction - as happens today.

The accepted documents in the transaction will remain locked in ACRIS, and their status will show as "Accepted". No changes can be made to the accepted documents and should not be returned to the City Register. The documents can not be deleted or re-sequenced in the transaction.

Once the necessary corrections have been made to the rejected documents, return only the rejected documents to the City Register.

Only the resubmitted rejected documents will be scanned and re-examined.

When these resubmitted rejected documents have been accepted by the City Register the entire transaction will be recorded.

The resubmitted documents will be mailed to the "Return To" parties with recording and endorsement pages for all of the documents in the transaction, and a letter summarizing the returned information for all of the documents in the transaction.

An email will be sent to the ACRIS customer who created the Cover Pages notifying them that the transaction has been recorded.

The "Presenter" party can then return the accepted documents to the "Return To" party.

Please refer to the ACRIS jump page - Announcements, for other information and FAQ's on this enhancement.

Contact Yvonne Hassan at (212) 487-6300 if you have any question related to this change.

Sincerely,

Annette M. Hill
City Register

The New York State Department of Taxation and Finance has today issued a Memorandum (TSB-M-07(6)R) advising that Cortland County will impose a county mortgage recording tax of $.25 per $100 effective November 1, 2007, increasing the mortgage tax from $.75 to the new rate of $1.00 for each one hundred dollars of principal indebtedness or obligation and each remaining major fraction thereof secured by a mortgage recorded in that County. The new rate will apply to mortgages recorded on or after the effective date of the increase.

Another Memorandum (TSB-M-07(8)R) issued today by the Department advises that the county portion of the mortgage recording tax in Genesee County, which is $.25 per $100, scheduled to expire on November 1, 2007, has been extended until November 1, 2009. The mortgage tax rate in Genesee County will therefore continue to be $1.25 for each one hundred dollars of principal obligation and each remaining fraction thereof secured by a mortgage recorded in that County.

An amended Form MT-15 ("Mortgage Recording Tax Return") reflecting the mortgage tax rates to be in effect on November 1 has been issued by the Department.

Following is the text of an email issued by the Department of Taxation and Finance to Recording Officers and others regarding an Advisory Opinion dated October 18, 2007 on the application of the mortgage recording tax to reverse mortgages.
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Attached is a recently published Advisory Opinion addressing the application of mortgage recording tax to a reverse mortgage executed under the United States Department of Housing and Urban Development (“HUD”) Home Equity Conversion Mortgage (“HECM”) reverse mortgage loan program.

As you know, pursuant to section 252-a.2 of the Tax Law, reverse mortgages that conform to the provisions of section 280 or 280-a of the Real Property Law that secure obligations of mortgagors or are exempt from those provisions pursuant to section 280(4) or 280-a(4) of the Real Property Law are exempt from the mortgage recording taxes imposed by Article 11 of the Tax Law. Section 252-a.2 of the Tax Law provides that to claim this exemption the lender should provide documentation to enable recording officers to affirmatively determine when a mortgage being presented for recording is a reverse mortgage conforming to section 280 or section 280-a of the Real Property Law and entitled to an exemption. Section 644.1(c)(2) of the Regulations outlines the contents required for an affidavit for a mortgage when an exemption is claimed pursuant to regulation section 644.1(b)(17) and applies to reverse mortgages "which conform to the provisions of section 280 or section 280-a of the Real Property Law.

However, the provisions of section 644.1(b)(17) and 644.1(c)(2) of the Regulations are silent with regard to a reverse mortgage that qualifies for exemption because it meets the federal requirements and is exempt from the provisions of section 280 or 280-a of the Real Property Law pursuant to section 280(4) or 280-a(4) of the Real Property Law, as would be the case with a HECM mortgage. Accordingly, pursuant to section 252-a.2 of the Tax Law, other documentation should be submitted to the recording officer to establish the exemption for a reverse mortgage that is exempt because it meets the federal requirements. In general, the following documentation is sufficient to establish the exemption:

1) an affidavit, signed by the mortgagee, affirming that the mortgage is a reverse mortgage that conforms to the applicable federal law and regulations under 12 USC §1715z-20 and, therefore, is exempt pursuant to section 280(4) (or, if applicable, section 280-a(4)) of the Real Property Law and exempt from the mortgage recording taxes pursuant to section 252-a.2 of the Tax Law, and

2) a second mortgage referencing the Home Equity Conversion Loan Agreement and naming the Secretary of Housing and Urban Development as mortgagee should be recorded at the same time the reverse mortgage is recorded.

Please note, for reverse mortgages that do not qualify under the federal program, the old affidavit required by sections 644.1(b)(17) and 644.1(c)(2) of the Regulations is necessary to support a claim for the reverse mortgage exemption.

Please click on the link below and read over the attached Advisory Opinion. If you have any question concerning the new affidavit procedure or other matters, please contact me.

Ralph Fatato
Tax Regulation Specialist I

http://www.tax.state.ny.us/pdf/advisory_opinions/mortgage/a07_5r.pdf

The New York State Department of Taxation and Finance has posted the interest ratse payable on overpayments or refunds or assessed on later payments and underpayments for the period January 1, 2008 through March 31, 2008 at http://www.tax.state.ny.us/press/2007/int1107.htm

The Westchester County Clerk has announced the following policies which take effect on January 1, 2008:

"You must submit separate checks for the payment of New York State Mortgage Tax, New York State Transfer Tax and recording fees. Therefore, if you are seeking to record a packet which requires payment of all three of these items, you will need to submit three of these items, you will need to sumbit three separate checks fo our office.

"Checks must be made payable to 'The Westchester County Clerk' in the exact amount due. If your check is not in the exact amount due, your submission will be rejected".

The Bulletin issued by the Clerk also notes that its office "now accepts Automated Clearing House (ACI) payments for mortgage tax, transfer tax and recording fees paid in connection with the recording of land records".

The Columbia County Clerk has issued the following notice:

"Effective December 1, 2007 ALL Deeds that are filed in Columbia County are required to include the Columbia County Supplemental Real Estate Transfer Tax Return form (SRETTR)" .

The notice indicates that the SRETTR can be downloaded at www.columbiacountyny.com.

There is $5.00 filing fee.

The tranfser tax for Columbia County is $5.00 for each $500 or part thereof. For a one family residence the first $150,000 of consideration is exempt.

The Westchester County Clerk;s Office has issued the following notice:

"As part of a continuing effort to make records more accessible, Westchester County Clerk Timothy C. Idoni is proud to announce that 36,573 images of maps have been added to the inventory of documents which can be viewed online by daily or annual subscribers. Previously, these maps were only available via viewing stations in the conty clerk's office in White Plains. For more information about online access to records, visit www.westchesterclerk.com and click on 'Records' at the top of the screen".

New York State's Department of Taxation and Finance has issued a Memorandum (TSB-M-07(9)R) dated December 27, 2007 reporting that Rensselaer County's portion of the mortgage recording tax of $.25 for each $100 secured, scheduled to expire, has been extended.

Accordingly, the mortgage tax rate imposed on the recording of mortgages in Rensselaer County will continue to be $1.25 for each $100 secured.

The Department's Memorandum is posted at http://www.tax.state.ny.us/pdf/memos/mortgage/m07_9r.pdf

A Budget Bill under consideration in the New York State Legislature (Part T, S6809/A9809) would increase the filing fees for the State Board of Real Property Services Real Property Transfer Report, known generally as the Equalization and Assessment Forms, to a maximum of $575. The charge in each instance will depend on the "reported sales price", whether the property being transferred is located within or outside the City of New York, and whether or not the property being transferred is "qualifying residential property" or "qualifying farm property".

The current, maximum charge for the transfer of property which is not "qualifying residential property" or "qualifying farm property" is $165.

If the Budget Bill is enacted in the present form as to these charges, the increases are to take effect on April 1.

It appears that these fees will also apply to the filing of the NYC RPT where an Equalization and Assessment Form is not required to be filed.

A Budget Bill under consideration in the New York State Legislature would, if enacted in its then present form, have increased the filing fee for Forms RP-5217 and RP-5217NYC, the State Board of Real Property Services Real Estate Transfer Report forms (also known as the Equalization and Assessment forms), up to $575.00 for a transaction with a "reported sales price" of more than $1,000,000. The change under consideration would have applied the same, new fee schedule to the filing of a NYC-RPT for a conveyance for which an instrument of transfer is not recorded, including the transfer of a cooperative unit or of a controlling interest in an entity owning real property. These changes were to take effect on April 1, 2008.

Advice has been received from the New York State Land Title Association that the state legislature has rejected this proposed fee increase.

A driveway easement was extinguished in 1978 when the benefitted and burdened parcels were acquired by a common owner. In 1982 the property was subdivided, and the two resulting parcels of land were subsequently conveyed. The deed to the land that had been burdened by the easement did not mention a driveway easement; the later deed and the subsequent deed to the Defendants, conveying the land that had been benefitted by the easement, referenced the driveway easement and noted that it burdened the servient land. In 2003 the owners of the purportedly dominant land, the Defendants in this case, removed a tree and fencing to enable them to have access to their garage using the easement. The owners of the purportedly servient parcel commenced an action for a declaration that the easement was no longer in force and effect, and to restrain the Defendants from using any part of the Plaintiffs' property. The Defendants counterclaimed for a declaration that their land was benefited by the easement.

The Supreme Court, Staten Island, granted the Plaintiffs' motion, holding that the easement was not re-created, because the deed conveying the Plaintiffs' property did not reference the easement. The Appellate Division, Second Department, reversed, concluding that the extinguished easement was re-created by the reference to the easement in the deed to the benefitted property, because the then owners of the burdened parcel knew of its existence. The Court of Appeals reversed the Order of the Appellate Division and reinstated the judgment of the Supreme Court.

According to the Court of Appeals, interpreting its holding in Witter v. Taggart, 78 N.Y.2d 234, "(w)e held that an encumbrance must be 'record[ed] in the servient chain [of title]…so as to impose notice upon subsequent purchasers of the servient land'. We did not hold that a subsequent purchaser's notice of an extinguished encumbrance, that once burdened the servient estate, was sufficient to re-create that encumbrance…It is irrelevant that plaintiffs may have had notice of an earlier easement, since the easement was not in existence at the time they purchased the property…". Simone v. Heidelberg, decided November 15, 2007, is reported at 9 N.Y.3d 177.

The following has today been received from the New York State Land Title Association

WE HAVE JUST BEEN INFORMED OF THE FOLLOWING CHANGE RE POWER OF ATTORNEY - SEE BELOW - IN THE WESTCHESTER COUNTY CLERK’S OFFICE.

WE HAVE ALSO BEEN INFORMED THAT THE NEW POWER OF ATTORNEY REQUIREMENTS WILL BE EFFECTIVE FOR ALL DOCUMENTS EXECUTED AFTER MONDAY APRIL 7TH. THEY WILL ACCEPT DOCUMENTS WITHOUT A POWER OF ATTORNEY BEING SUBMITTED WITH THE DOCUMENT (FOR INDIVIDUALS) IF EXECUTED PRIOR TO APRIL 7TH AND THE DOCUMENT CONTAINS A NOTE INDICATING “EXECUTED PRIOR TO 4/7/08 – POWER OF ATTORNEY NOT REQUIRED TO BE SUBMITTED.

[The following has been issued by the Deputy Westchester County Clerk]:

Please ensure that all staff are advised of the following policy change below, as well as in providing any clarification to ensure their understanding and application of same. This policy is effective immediately:

All conveyance documents that reference a Power of Attorney, or are signed and executed by a signature under Power of Attorney, whether individually or by attorney-in-fact for a corporate entity, must comply with the following in order for a conveyance to be accepted for recording:

1. For both individual and corporate executed documents, a Power of Attorney must be of prior record, or submitted simultaneously therein, with the conveyance tendered for recording;

2. For a conveyance submitted for recording with reference to a prior filing of a Power of Attorney, the conveyance must contain reference to the liber and page, control number and file date of the Power of Attorney;

3. For conveyances submitted for recording with reference to a prior filing of a Power of Attorney not filed in the Land Records Division, the conveyance must be accompanied by a certified copy of the prior recorded Power of Attorney,

John J. Mongero
Chief Deputy County Clerk

Solomon WEISS, et al. respondents,
v.
Irene FELDBRAND, appellant.

April 1, 2008.

--- N.Y.S.2d ----, 2008 WL 879049 (N.Y.A.D. 2 Dept.)

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated February 10, 2006, as denied those branches of her motion which were for summary judgment dismissing the complaint and to vacate a lis pendens and, in effect, denied that branch of her motion which was for summary judgment on her counterclaim, and granted that branch of the plaintiffs' cross motion which was for summary judgment directing specific performance of the contract.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiffs' cross motion which was for summary judgment directing specific performance of the contract and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Before specific performance of a contract for the sale of real property may be granted, a buyer must demonstrate that it was ready, willing, and able to perform (see Dario v. Rockaway Blvd. Props. 44 AD3d 602; Chavez v. Eli Homes, Inc., 7 AD3d 657, 659; Nuzzi Family Ltd. Liab. Co. v. Nature Conservacy, 304 A.D.2d 631, 632). Here, the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law, as they did not obtain a mortgage commitment and their assertion that a relative could supply the funds necessary to close was not substantiated by any documentary evidence (see Chernow v. Chernow, 39 AD3d 684, 686; Aliperti v. Laurel Links, Ltd., 27 AD3d 675, 676; Internet Homes, Inc. v. Vitulli, 8 AD3d 438, 439). Moreover, the plaintiffs failed to show that they properly demanded performance of the contract of sale on a specific day (see Decatur [2004] Realty, LLC v. Cruz, 30 AD3d 367; Cave v. Kollar, 296 A.D.2d 370). Accordingly, the Supreme Court should have denied that branch of the plaintiffs' cross motion which was for summary judgment directing specific performance of the contract.

The parties' remaining contentions are without merit.

The Supreme Court, Richmond County, denied a foreclosing mortgagee's motion for summary judgment and stayed the proceeding on finding that the original lender violated New York's "predatory lending" statute, Banking Law, Section 6-L ("High-cost home loans"). The Court scheduled a hearing to determine damages incurred by the Plaintiff and indicated that relief may, under Section 6-L, include the voiding of the mortgage, the return of all mortgage payments, the expenses of obtaining the loan and attorneys' fees. Among the acts in question were (i) lending in excess of the purchase price to enable payment of points and closing fees, leaving the borrowers with negative equity in the property; (ii) financing of fees and points in excess of three per cent of the principal amount of the loan; (iii) the failure to undertake the "due diligence" required regarding the borrower's ability to pay a "high cost home loan"; and (iv) not issuing to the borrower a required "Consumer Caution and Home Ownership Counseling Notice". LaSalle Bank NA v. Shearon, decided January 28, 2008, was reported in the New York Law Journal on February 7, 2008 and is reported as 2008 NY Slip Op 28032.

A recent decision by the Appellate Division, Second Department, expands the scope of matters in which a lis pendens may be filed to include cases where it is alleged a judgment debtor is attempting to fraudulently convey property in anticipation of an imminent judgment . "The plaintiffs allege in their complaint, in relevant part, that defendants, in anticipation of an imminent judgment against them and with the intent to defraud their creditors, conveyed certain real property to related corporate entities, without adequate consideration, thereby rendering themselves insolvent ... Under the circumstances, the Supreme Court erred in determining that this action was not one in which a notice of pendency may be filed" (citations omitted).).

See Ford Motor Co. v. Shayovitz, 36 A.D.3d 754, 828 N.Y.S.2d 539 (2d Dep't 2007)

Submitted by Abraham B. Krieger, Esq.
Meyer, Suozzi, English & Klein, P.C.
Garden City, New York

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.

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.

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 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 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.

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.

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.

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.

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".

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

Chapter 333 of the Laws of 2008 authorizes the Town Board of the Town of Northeast in Dutchess County to establish a Community Preservation Fund. To provide a source of revenue for the Fund, the Act adds Article 31-A-3 ("Tax on Real Estate Transfers in the Town of Northeast") to the Tax Law, authorizing the Town, subject to approval by referendum, to adopt a Local Law imposing a transfer tax of up to two percent (2%) of consideration, payable by the grantee, on the conveyance of real property in the Town or an interest therein. Among the exemptions to be applied is "[a]n exemption from the tax which is equal to the median sales price of residential real property within the applicable county, as determined by the Office of Real Property Services pursuant to Section 425 of the Real Property Tax Law…" A Return will be required to be filed, and any tax due paid, to record an instrument conveying real property or an interest therein within the Town.

Under subparagraph "a" of paragraph 4 of subdivision (a) [now subparagraph a(1)] of Civil Practice Law and Rules ("CPLR") Section 8021 ("County clerks other than as clerks of court"), the charge to record, enter, index and endorse a certificate on an instrument is $5.00. A recording officer can charge $3.00 for each page or portion of a page and $.50 for each additional town, city block or other index in which the instrument is to be indexed. On an assignment of more than one mortgage or the "release" of more than one lease, there is an additional fee of $3.00 for each mortgage assigned or lease "released" in excess of one.

Chapter 288 of the Laws of 2008 signed into law by Governor Paterson on July 7, 2008, amended subdivision (a) of CPLR Section 8021. It renumbered the existing subparagraph "a" as subparagraph "a(1)" and added subparagraph "a(2)", which reads, in part, as follows:

"(2) Notwithstanding clause one of this subparagraph, any county may opt by county law to increase the fee for recording, entering, indexing and endorsing a certificate on any instrument from five dollars to twenty dollars and, in addition thereto, increase from three dollars to five dollars for each page or portion of a page. Such increase shall take effect thirty days after the county enacts such fees. For the purpose of determining the appropriate recording fee, the fee for any cover page shall be deemed an additional page of the instrument…"

Local Laws have been enacted pursuant to Chapter 288 in a number of Counties. Increases in recording charges took effect in Columbia County on September 15, 2008, in Essex and Warren Counties on September 18, 2008, in Clinton, Franklin, and Rockland Counties on October 1, 2008, in Nassau County on October 4, 2008, in Putnam County on October 6, 2008, and in Tompkins County on October 8, 2008. Increases will take effect in Suffolk County, on October 16, 2008 and in Ulster County on November 3, 2008.

"On August 5, 2008, Governor Paterson signed into law comprehensive legislation that the New York State Legislature had passed in June, referred [to] by some as the Foreclosure Prevention and Responsible Lending Act. The law provides assistance to homeowners with high-cost subprime and non-traditional home loans who are in danger of losing their homes. This law also provides consumer protections in the subprime lending industry. Provisions of the new law go into effect at different points in time, statring immediately".

The paragraph above is from "New State Law Addresses Mortgage Foreclosure Crisis and Subprime Lending Abuses", by Kirsten Keefe and Elizabeth Hasper of the Empire Justice Center, in Albany, which has been posted to the NYSBA website at the link set forth below.

http://www.nysba.org/Content/NavigationMenu19/Articles/ForeclosurePrevRespLendAct2008summary.pdf

Note also the article "Chapter 472: New N.Y. Mortgage Foreclosure Legislation", by M Berey, published in the New York Law Journal on September 11, 2008.

The Office of Tax Policy Analysis of the NYS Department of Taxation and Finance has issued a memorandum (TSB-M-08(5)R) dated October 27, 2008 captioned "Special Additional Mortgage Recording Tax Exemption for Federal Credit Unions that Convert to State Credit Unions".

The memorandum provides notice of an exemption from the special additional mortgage recording tax on mortgages where the mortgagee is a NYS chartered credit union that has converted from a federal credit union on or after January 1, 2009.

The memorandum is posted at: http://www.tax.state.ny.us/pdf/memos/mortgage/m08_5r.pdf

Seller’s Contractual Duty Only to Deliver "Existing" Certificates of Occupancy: Malpractice by Purchaser’s Attorney

A complaint against a purchaser’s attorney has recently been held to state a cause of action for damages for legal malpractice. The contract of sale for a multi-use commercial property provided" "[a]t closing, the Seller shall deliver copies of all existing Certificates of Occupancy for the premises." Seller later asserted that COs did not exist and that he had no obligation under the language of the contract to procure and deliver them. As a result, the purchaser was unable to obtain financing for the acquisition, and the seller declared the buyer to be in breach and retained the $173,000 down payment. Purchaser’s attorney’s motion to dismiss was denied by the Supreme Court, which denial was affirmed by the Appellate Division, Second Department. The purchaser alleged that his attorney negligently negotiated the terms of the contract, thereby permitting the seller to refuse to procure and deliver the COs, resulting in damages of $173,000. The Appellate Division’s opinion said that, taking these allegations as true and according the plaintiff the benefit of every possible favorable inference, they state a cause of action. Malik v. Beal, 864 N.Y.S.2d 153 (2d Dept. 2008).

Here, the purchaser’s attorney apparently missed the limitation of the seller’s delivery obligation to "existing" COs. He did not obtain a representation that COs did exist. Purchasers’ attorneys beware!

Karl B. Holtzschue

Plaintiff 2386 Creston Avenue Realty, LLC ("Creston") entered into a contract with Defendant M-P-M Management Corp. ("MPM") to purchase from MPM property in Bronx County. The closing was adjourned to enable MPM (as provided in the contract) to clear outstanding municipal violations, However, in January 2005, MPM contracted to sell the same property to Defendant Pioneer Parking LLC ("Pioneer"). On February 14, 2005, MPM cancelled its contract with Creston, and on February 14, 2005 MPM deeded the property to Pioneer. Also, on February 14, 2005, Creston filed a notice of pendency against the property and commenced an action for specific performance. The deed was recorded on March 1, 2005.

Defendant Pioneer's motion for summary judgment dismissing the complaint against it and vacating the notice of pendency was granted by the Supreme Court, Bronx County. Absent admissible evidence suggesting Pioneer was aware of the other contract, Pioneer was a bona fide purchaser for value without notice protected under New York's Recording Act (Real Property Law Section 291 ("Recording of Conveyances").

On appeal, Plaintiff alleged that the filing of a lis pendens protected its rights as a contract vendee. The Appellate Division, First Department, disagreed and affirmed the ruling of the lower court, holding that "a contract vendee such as plaintiff does not, by virtue of the filing of a notice of pendency, create an interest in real property superior to a subsequent good faith purchaser from the same vendor who records a contract or conveyance". According to the Appellate Division, citing Real Property Law Section 294(3) ("Recording executory contracts and powers of attorney"), "[e]very executory contract for the sale...of real property, not recorded, shall be void as against any person who subsequently purchases or…contracts to purchase…the same real property", and the filing of the lis pendens "does not create rights that did not already exist". 2386 Creston Avenue Realty, LLC v. M-P-M Management Corp., decided November 18, 2008, is reported at 2008 WL 4911799.

A summary of Chaper 644 of the Laws of 2008 is posted on the Real Property Section's web site at http://www.nysba.org/POARevised

The Office of Counsel, Advisory Opinion Unit, of the New York State Department of Taxation and Finance, has issued an Advisory Opinion dated March 5, 2009 (TSB-A-09(4)C) taking the positon that a corporation dissolved by proclamation, that is the record title holder of real property located in New York State as nominee for the benefit of others, which is otherwise inactive and not conduting business in the State, is for the period following its dissolution not subject to State franchise tax under Tax Law Article 9-A. The Advisory Opinion is posted to the Department's web site at
http://www.tax.state.ny.us/pdf/advisory_opinions/corporation/a09_4c.pdf

Spencer Compton and Joshua Stein invite you to join a subcommittee to participate in a recently commenced collaborative writing project, similar to their widely published landlord's and tenant's silent lease issues checklists. The new project is entitled The Real Property Transactional Playbook. It will consist of developing individual buyer and seller checklists for a series of specific commercial real property types. We have begun holding a series of brown bag lunch meetings, each devoted to a particular property type, to synthesize and develop the specific checklist unique to that property type. Each property type checklist will cover due diligence, contract negotiations, and closing deliveries specific to the property type. We will “wrap” the collection with a generic checklist that applies across the board. By the time we complete this project, we anticipate/hope that the real estate market will have changed direction yet again, with the result that everyone will be buying and selling all sorts of commercial real property once more, and using these checklists to help them do it.

We have begun with office buildings, after which we will move on to hotels, retail large and small, multifamily rentals, warehouses, recently constructed buildings, commercial condominiums, ground leases, assemblages, etc., and maybe even get to airports, power plants, paper mills, manufacturing facilities, health care properties, movie theaters, motion picture studios and so on. Each property type will be covered in a separate checklist article (limited to issues unique or at least relatively specific to that particular property type) to be published in the NYSBA Real Property Law Journal and elsewhere. Eventually, we may assemble the completed articles in a book, which we might call the Real Property Transactional Playbook. The entire project will technically constitute a subcommittee of the Real Property Law Section's Title and Transfer Committee.

Our second brown bag lunch -- devoted specifically to the unique issues of acquiring office buildings and more generally to brainstorming about the larger project -- will take place on April 16th from 12:00 to 2:00PM at the offices of First American Title Insurance Company of New York, 633 Third Avenue, 17th Floor, New York, New York. Cookies and cold drinks will be provided. Come and participate in this new project brought to you by the co-authors of the Landlord's and Tenant's Silent Lease Issues Checklists.

To RSVP and receive a copy of the office building checklist as it now exists as a work in progress, please e-mail Spencer Compton at SHCompton@firstam.com.

We look forward to seeing you on April 16th.

The Office of Counsel of the Advisory Opinion Unit of the New York State Depatment of Taxaton and Finance has issued an Advisory Opinion on the application of the mortgage recording tax to a mortgage made to an exempt entity which is assigned immediately after the mortgage is recorded to the true lender. See TSB-A-09(1)R, dated March 17, 2009 at http://www.tax.state.ny.us/pdf/advisory_opinions/mortgage/a09_1r.pdf.

New York State's Budget, Chapter 56 of the Laws of 2009, has changed the interest rates to be charged on late payments and assessments for the mortgage recording tax and the State's Real Estate Transfer Tax effective April 7, 2009. The interest rate for late payments and for assessments is 8% per annum compounded daily for the period April 1, 2009 through June 30, 2009. The rate for the period January 1, 2009 through March 31, 2009 was 7% per annum compounded daily, and the rate for the period April 1, 2009 through April 6, 2009 was 6% per annum compounded daily. The interest rate for refunds for the period April 1, 2009 through June 30, 20098 is 3% per annum compounded daily. The Department of Taxation and Finance's press release is posted at http://www.tax.state.ny.us/press/2009/int0409.htm.

The 2009 versions of New York State Department of Taxation and Finance's Non-Resident Real Property Estimated Income Tax Payment Form ("IT-2663") and "Non-Resident Cooperative Unit Estimated Income Tax Payment Form" (IT-2664") have been revised to reflect the recent change in the applicable personal income tax rate on the sale or transfer of real property in New York from 6.85% to 8.97%. The prior versions of these forms for 2009 are not to be used as doing so would incorrectly calculate the tax.

A box in the upper right corner of the forms identifies the version to be used by reference to "(4/09").

The previously issued Instructions for 2009 have not been changed.

The revised forms can be obtained on the Department's web site at http://www.tax.state.ny.us/forms/form_number_order_income.htm

The New York City Register has advised a committee of the New York State Land Title Association that Condominium Declarations and Floor Plans may now be submitted for recording in any of the offices of the City Register, regardless of the County within the City (excepting Staten Island, which is not a part of the City Register's office) in which the property is located. In addition, the Department of Finance intends to require that all condominium Floor Plans be submitted to the City Surveyor's Office on 8 ½" X 11" sized paper, enabling their recording and viewing in ACRIS (the Department's "Automated City Register Information System").

The City Register has advised that the effective date of this change is presently intended to be June 1, 2009 and that the Department of Finance will issue a notice of the procedure before the effective date.

New York State's Budget, enacted on April 7, 2009 as Chapter 56 of the Laws of 2009, amends Subdivision "3" of Real Property Law Section 333 ("When conveyance of real property not to be recorded") to increase the filing fee for the State Board of Real Property Services Real Property Transfer Report, generally known as the RP-5217 and the RP-5217NYC or as the Equalization and Assessment Form. The increased fees are required for all deeds submitted for recording on and after June 1, 2009. When the property being transferred is a “Qualifying residential property” or a “Qualifying farm property” the filing fee will increase from the $75.00 now being charged to $125.00. The filing fee for the transfer of any other type of property will increase from the $165.00 now being charged to $250.00. The fee to file the New York City Real Property Transfer Tax Return when the Equalization and Assessment form is not required to be filed, such as on the transfer of a cooperative interest or of a controlling economic interest, will increase from $50.00 to $100.00

“Qualified residential property” is defined in Section 333 as property which satisfies at least one of the following conditions:

1. The property classification code assigned to the property on the latest final assessment roll, as reported on the transfer report form, indicates that the property is a one, two, or three family home or a rural residence, or

2. The transfer report (Equalization and Assessment) form indicates that the property is one, two or three family residential property that has been newly constructed on vacant land, or

3. The transfer report (Equalization and Assessment) form indicates that the property is a residential condominium.

“Qualifying farm property” is defined in Section 333 as property for which the property classification code on the latest final assessment roll, as reported on the transfer report (Equalization and Assessment) form, is in the agricultural category.

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 New York State Court of Appeals on May 12, 2009, 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, in a decision reported at 2007 WL 2119748, denied the mortgagees' petition. The Appellate Division, in a decision reported at 854 N.Y.S. 2d 10, reversing 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. The Court of Appeals affirmed the decision of the Appellate Division. "Because CPLR 5014 does not provide for a renewal judgment to have retroactive effect to the original lien's expiration date and because nunc pro tunc treatment is inappropriate where, as here, additional lenders relying on the public record acquired rights in the property, we hold that the renewal lien becomes effective when granted by the Supreme Court". The Court of Appeals decision in Gletzer v. Harris is reported at 2009 WL 1285970.

The New York City Real Property Transfer Tax Return has been revised effective June 8, 2009 to add a new Schedule "I", captioned "Transfers Pursuant To A Separation Agreement, Marital Settlement Agreement Or Divorce Decree". According to an announcement posted on the Department of Finance's website, at http://nyc.gov/html/dof/html/jump/acris.shtml:

"Changes to the E-Tax application Real Property Transfer Tax Return (RPT) section Effective June 8, 2009

"Starting June 8, 2009 ACRIS customers that use the E-Tax application will see a new schedule in the Real Property Transfer Tax Return (RPT) section. The new schedule, Schedule I, will be required if the Condition of Transfer is "Transfer pursuant to marital settlement agreement or divorce decree". If the Condition of Transfer is “Other”, the new schedule will be optional. For all other Conditions of Transfer, the new schedule will not be displayed. The Schedule I will be grouped together with other Alpha schedules and will be placed between Schedule H and M".

A Registration Statement, also known as a "Preliminary Residential Property Transfer Form", is required to be filed when recording a deed or a lease of a building which is a multiple dwelling in New York City, unless an affidavit is submitted that the premises is not a multiple dwelling. Current Developments issued April 16, 2009, reported that effective May 3, 2009, pursuant to the requirements of Local Law 56 of 2008, a Registration Statement is also required to be filed for all one-and-two family dwellings "when neither the owner nor any family member occupies the dwelling". A "family member" for this purpose is defined to include "an owner's spouse, domestic partner, parent, parent-in-law, child, sibling, sibling-in-law, grandparent or grandchild". The Local Law, which amends Sections 27-2097 ("Registration; time to file"), 27-2098 ("Registration statement; contents") and 27-2099 ("Registration statement; change of ownership or title") of the City's Administrative Code, is at http://www.nyccouncil.info/pdf_files/bills/law08056.pdf.

The Department of Housing Preservation and Development has issued a revised Affidavit in Lieu of Registration, a copy of which accompanies this Bulletin. The City Register advises that the prior form of Affidavit will be accepted by her office only until the end of July.

The revised form can be obtained at http://www.titlelaw-newyork.com/Forms/Affidavit_In_Lieu_of_Registration.pdf

The City of Yonkers has extended the application of its portion of the mortgage recording tax, which is $.50 for each $100.00 of principal indebtedness secured. The total mortgage recording tax imposed on the recording of a mortgage on property located in the City of Yonkers will therefore continue to be $1.80 for each $100.00 of principal indebtedness secured.

Greene County has elected to impose a County recording tax of $.50 for each $100.00 secured by a mortgage on property located in that County effective as to mortgages recorded on and after October 1, 2009. The total mortgage tax imposed on the recording of a mortgage on property located in Greene County will, as of October 1, be $1.25 for each $100.00 of principal indebtedness secured.

See http://www.tax.state.ny.us/pdf/memos/mortgage/m09_2r.pdf, as to the City of Yonkers and http://www.tax.state.ny.us/pdf/memos/mortgage/m09_3r.pdf, as to Greene County.

To comply with the requirements of Chapter 644 of the Laws of 2008, new forms of power of attorney have been issued by New York State's Department of Taxation and Finance for use in tax matters with the Department and with New York City's Department of Finance.

For Form POA-1 ("Power of Attorney") and Form POA-1-IND ("Power of Attorney for Individuals"), instructions, and the Department's announcement, go to:

http://www.tax.state.ny.us/pdf/notices/n09_17.pdf
http://www.tax.state.ny.us/pdf/current_forms/misc/poa1.pdf
http://www.tax.state.ny.us/pdf/current_forms/misc/poa1_ind.pdf

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, which is effective October 1, 2009, has been issued by the New York State Department of Taxation and Finance. The form sets forth the mortgage recording tax rates in effect in each County as of October 1, taking into account change in the mortgage tax rate in Greene County on October 1 to $1.25 for each $100.00 of principal indebtedness secured. Revised Form MT-15, with Instructions, will be posted at http://www.tax.state.ny.us/forms/form_number_order_mt_pt.htm.

The Office of the Westchester County Clerk has issued the following notice:

Effective January 1, 2010 Westchester County will require that all cover pages and transfer documents be created through their web -based Property Records Electronic Portal (PREP). Handwritten forms will no longer be acceptable to the County Clerk's office from that point forward.

Beginning October 1, 2009, this system will be accessible to users for testing or as an alternative to handwritten forms. Although it is not mandatory to create the forms through PREP prior to the January 1 effective date, we encourage all of our clients to begin the use of [the] system for all transactions so that unforeseeable recording issues with the County Clerk can be avoided.

The website to create the forms is http://prep.westchesterclerk.com .

The site will be accessible on October 1.

Under a new "Penalty Relief Program", the base fine for an Environmental Control Board violation can be paid without also paying interest, a penalty or a late fee, provided that the condition which caused the fine was cured. The Program applies to violations "in default" for which a hearing was scheduled before May 1, 2009. An application must be filed before December 21, 2009. See http://nyc.gov/html/dof/html/pdf/ecb/ecb_faq.pdf.

Effective November 1, 2009 a county mortgage recording tax of $.25 for each $100 secured will be imposed in Cattaraugus County, making the total mortgage tax rate applicable to mortgages on real property located in that County $1.25 for each $100 secured.

See http://www.tax.state.ny.us/pdf/memos/mortgage/m09_7r.pdf

A revised form of the Mortgage Recording Tax Return, Form MT-15 (11/09), has been issued by New York State's Department of Taxation and Finance. The MT-15 is used to compute the mortgage recording tax due when the mortgaged real property is located in more than one locality, and the localities in which the property is located imposes tax at different rate.

The form has been modified to include the tax rate change for Cattaraugus County effective November 1, 2009.

Form MT-15 is posted at: http://www.tax.state.ny.us/pdf/2009/mortgage/mt15_1109.pdf

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

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.

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.

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

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 Appellate Division, Second Department, has ruled that the failure to properly give notice, as required under the Home Equity Theft Prevention Act (Chapter 308 of the Laws of 2006), is a defense that can be raised at any time during the forelosure; it need not be raised only as an affirmative defense.

Further, according to the Court, the foreclosing lender has the burden of showing that it strictly complied with the notice requirements of the Act.

First National Bank of Chicago v. Silver, decided March 23, 2010, is reported at 2010 WL 1078805.

New York State's Department of Taxation and Finance has issued a Bulletin advising as follows:

"Effective January 1, 2010, section 253.1-a(a) of the Tax Law was amended to provide an exemption from the special additional mortgage recording tax (SAMRT) on mortgages of certain residential real property where the mortgagee is a New York State chartered credit union organized under Article 11 of the Banking Law".

The Biulletin sets forth what is required to be stated in an affidavit claiming the exemption.

TSB-M-10(1)R, dated March 30, 2010, is posted at:
http://www.tax.state.ny.us/pdf/memos/mortgage/m10_1r.pdf

Plaintiff alleged that he was injured due to a defective sidewalk adjoining the property being foreclosed. The accident was alleged to have taken place between the date on which the judgment of foreclosure and sale was issued and the date on which the mortgagee purchased the property at the foreclosure sale. Plaintiff claimed that the mortgagee, which was paying the property’s real estate taxes and property preservation fees during the action, was the “equity owner” of the property when he was injured. The Supreme Court, Kings County, granted the Defendant’s motion to dismiss the complaint. According to the Court, as the property is a multiple dwelling, the Defendant “had no duty in law or equity to maintain or repair the property” until completion of the foreclosure sale. “[A] mortgagee prosecuting a foreclosure action [involving a multiple dwelling] is not charged with repairs of the property and a duty to repair cannot be created by arguing the applicability of equity”. Forbes v. Aaron, decided March 4, 2010, is reported at 2010 WL 811115.

Mortgage Foreclosures – In an Action to foreclose a mortgage securing a loan in the amount of $302,500.00 on a residential property, Justice Spinner of the Supreme Court, Suffolk County barred the Plaintiff from collecting interest on the loan from May 1, 2008, the date of the borrower’s default, to March 1, 2010, which was just before the date of the settlement conference. He also barred the Plaintiff from recovering other advances it had made and its legal fees and expenses, and limited the debt recoverable by the Plaintiff to $301,721.58. The Court also awarded the Defendants $100,000 in exemplary damages. The Court found that there was no justification for the fourteen month delay between default and the commencement of the Action other than to increase the amount of default interest; that the terms and conditions of the Adjustable Rate Note, Default Interest Rate Rider and Mortgage were in the nature of contracts of adhesion; that the legal fees and costs claimed were “excessive and unreasonable”; and that the accrued interest was computed at a “confiscatory rate”. According to the Court, “the conduct of Plaintiff in this matter has been over-reaching, shocking, willful and unconscionable, is wholly devoid of even so much as a scintilla of good faith and cannot be countenanced by this Court”. Emigrant Mortgage Co. Inc. v. Corcione, decided April 16, 2010, is reported at 2010 WL 1531432.

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.

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

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’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.

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"

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 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