Current Developments

 

Issued November 6, 2017

  • City of New York is responsible for maintenance of the part of a retaining wall bordering its property

  • Costs incurred by a condominium for repairs to a unit and fines could not be included in a common charge lien

  • “Annual Reports for Certain Transactions Required” of condominium and cooperative boards

  • Tenants and Unit owner are not “owners’ with a duty to maintain the public sidewalk outside of the condominium

  • “Diversity, Inclusion and Elimination of Bias” added as a required category for CLE credit in New York

  • Action seeking to rescind contract amendment held not to be an anticipatory breach

  • Use of terrace outside cooperative units did not result in rights under adverse possession

  • Damages for “willful exaggeration” of a mechanic’s lien are not recoverable when an action to foreclose the lien was disposed of by stipulation

  • A pending loan modification held to not be a defense to a mortgage foreclosure

  • Mortgage held not to encumber bonus development rights

  • Mortgage discharged in error reinstated as the borrowers had not acted in reliance on the recording of the satisfaction

  • Title acquired by a bona fide purchaser for value was not subject to the consequences of an appeal when no stay of the enforcement of the lower court’s Order or the foreclosure sale had been obtained

  • Doctrine of “tax estoppel” applied to establish the amount payable on the exercise of a right of first refusal

  • New York City Zoning Resolution amended to add the “Greater East Midtown Subdistrict”  

Issued September 18, 2017 

  • License granted developer for access to adjoining properties

  • Collection of real estate taxes did not bar City’s claim of adverse possession

  • Rights to restrict development of property (“development rights”) is an interest in real property

  • FinCEN extends requirement that title companies report all cash sales of “high-end” residential real estate, adds Honolulu to the covered locations, and expands reportable transactions

  • Mechanic’s claim against surety dismissed because lien was not extended

  • Commencement of foreclosure did not accelerate debt as Plaintiff did not have standing

  • Foreclosure of collateral mortgage against guarantors not barred by single-action rule as guarantors were not defendants in the foreclosure of the primary mortgage

  • Solar panel system was not a fixture and, notwithstanding mortgage foreclosure, could be removed by entity which leased the system to the property owner

  • Property owner can maintain a holdover procedure against a tenant although a judgment of foreclosure had been entered since there had been no sale of the property

  • Order sought for the assignment of a satisfied mortgage was “moot”

  • Acceleration of debt by mortgage foreclosure not revoked by a letter sent to borrower stating that “the lender no longer wished to exercise the acceleration option”

  • Default notice sent after discontinuance of mortgage foreclosure revoked the prior acceleration of the obligation

  • Foreclosure sale vacated because referee led owner and his attorney to reasonably believe the sale would be postponed

  • NYS Annual Statistical Report for FY 2016-2017 Tax Collections

  • NYS Department of Taxation and Finance issues an Advisory Opinion on the transfer of real property from a trust to its beneficiaries on the death of the settlor

  • Title of a bona fide purchaser held not subject to a judgment docketed against the names of its sellers misspelled

  • Conveyance by a religious corporation invalid for the failure to obtain court approval of the sale

  • Municipality’s construction of a comfort station alleged disturbing the rights of abutting owners to light, air and access is a permitted use of a public street

  • Favorable transfer tax treatment for REITS extended

Issued July 26, 2017 

  •  Presumption that an acknowledged signature is valid

  • That survey showed fence was beyond property line die not defeat claim of adverse possession

  • Assignment of rents held to be effective only upon foreclosure or the appointment of a receiver

  • Purchaser’s cancelation of contract due to mold at the property held not to be an anticipatory breach since contract required that there be no evidence of mold remediation at the time of closing

  • Email exchange did not constitute a binding contract of sale under the statute of frauds

  • Sale of property by a dissolved corporation did not require shareholder consent

  • NYS Department of Law issues “Disclosure Requirements Regarding FinCEN’s Geographic Targeting Order”

  • Proof of the first-class mailing of notice is required to establish compliance with the requirements of RPAPL Section 1304

  • Referee cannot bid at a foreclosure sale on behalf of the Plaintiff

  • Information on the public record, which could have been discovered before trial, is not newly discovered evidence that could enable a foreclosure judgment to be vacated

  • Acceleration of the indebtedness can be revoked by a lender in a written notice sent to the borrower

  • Easements are subject to being cut-off in a mortgage foreclosure

  • Failure to list the chain of mortgages in a consolidation agreement is a “trivial defect” that should not prevent foreclosure

  • Lender holding note and mortgage as “custodian of the loan documents” lacked standing to foreclose

  • Reference in a conveyance to the right to remove “minerals” includes rights to remove “sand and gravel”

  • Building may be constructed to cantilever over its owner’s part of a party wall

  • Court of Appeals ruled that NYC alienated public parkland, the Willets West development in Queens, without legislative approval

  • Real estate taxes paid on fiber optic cables are not required to be refunded when they were not paid under protest under the “voluntary payment rule “

  • Contract of sale executed by a religious corporation without the approval of its board of trustees or members is not enforceable

  • Homeowner did not have standing to enforce restrictive covenants imposed for the benefit of another’s land and not part of a common development scheme

  • Right of first refusal which did not required that any offer with a third-party be unconditional was subject to a provision in the third-party contract that the deed would restrict the property’s use

  • Deed to two individuals who were married at the time of the conveyance established a tenancy by the entirety

Issued May 25, 2017

  • Offer to pay for a parcel’s use defeated a claim of adverse possession

  • Preliminary injunction granted restraining property owner who would not extend closing date from selling to other than the contract vendee

  • Purchaser’s counsel authorized to execute contract of sale

  • Sellers could cancel contract because liens on property exceeded amount they were required by contract to pay

  • Reinstatement of corporation was a new fact allowing the grant of its motion to set aside conveyances

  • NYS Department of Law issues Memorandum on the Cooperative Policy Statement #5 exemption from filing an amendment to an offering plan

  • Deeds and mortgages set aside on finding that the first executed deed was forged

  • Title vests on delivery of an executed deed not on recording

  • Provision for reversion of title, but not the restriction on the use of the property, held to be unenforceable

  • Presumption of insolvency, and therefore of a fraudulent conveyance, when a transfer is made without fair consideration

  • Absent evidence of an intention to defraud, liability of guarantors was limited as set forth in their guarantees

  • Corporate officers may be personally liable for the filing of a willfully exaggerated mechanic’s lien

  • Mechanic’s lien filed again a lessee’s interest in land owned by the Port Authority discharged as it is a public improvement lien

  • Mortgage foreclosure held time barred; dismissal of prior mortgage foreclosure did not invalidate the mortgagee’s election to accelerate the mortgage debt

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period July 1, 2017 – September 30, 2017

  • New York City Transfer Tax Return (NYC-RPT) revised to provide for the exemption for transfers involving an HDFC

  • Purchasers held to be a bona fide purchasers as to real estate taxes mistakenly marked paid

Issued March 24, 2017 

  • DFS issues “Cybersecurity Requirements for Financial Service Companies”

  • FinCEN extends requirement that title companies report all cash sales of “high-end” residential real estate

  • US Bulkhead Line along the Bronx Shoreline of the Harlem River is not a ‘boundary of the City of New York” under NYC’s Zoning Resolution

  • Lower court’s dismissal of complaint against borrower’s attorney for erroneous legal opinion reversed

  • Deceased member’s interest in LLC must be transferred to surviving member under terms of Operating Agreement

  • Foreclosing mortgagee is only required to negotiate a HAMP modification in good faith and is not required to modify the mortgage

  • NYS Department of Taxation and Finance issues Technical Memorandum on the imposition of the Additional Tax of the mortgage tax to an IDA mortgage

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period April 1, 2017 – June 30, 2017

  • Mortgage cannot be ordered discharged on deposit of amount due into escrow

  • Bills for NYC real estate taxes payable April 1, 2017 available online

  • NYC Department of Finance posts “Claiming a New York City Real Property Transfer Tax Exemption for Transfers to or from Housing Development Fund Companies…”

  • NYS Department of Taxation and Finance issues an Advisory Opinion on the application of the NYS Transfer Tax to reverse like-kind exchanges

  • Court extends notice of pendency in an action for an injunction due to other litigation over a related issue

  • Dismissal of action over a water-related condition in a home affirmed even though the condition was not reported in Property Condition Disclosure Statement

  • Foreclosing mortgagee held not subject to purported ownership rights of Defendants in occupancy

Issued January 26, 2017 

  • Easement lacking a metes and bounds can be relocated

  • Holder of senior lien not cut-off in a foreclosure is not entitled to surplus money

  • Accrued interest on mortgage debt reduced because of delay in foreclosure

  • Viable claim not raised for cancelation of erroneous satisfaction of mortgage

  • Prior notes and mortgages continued notwithstanding consolidation

  • Effective date of requirement that “additional” mortgage recording tax is payable on an IDA transaction to be extended

  • Reliance on a payoff letter, notwithstanding all principal indebtedness was not paid, was justified

  • Tax map verification fees increased in Nassau and Suffolk counties

  • Wall held to no longer be a party wall

  • Mere occupancy of a tenant does not charge a mortgagee with a duty of inquiry as to other rights held by the tenant

  • Appointment of a temporary receiver to collect common charges at request of Board of Managers denied

  • Preliminary injunction not issued because the Plaintiff benefitted by a restrictive covenant  did not establish that it would suffer irreparable injury

  • Statute of limitations to enforce a mortgage debt was not “reset” by the borrower’s conditional request to modify the loan

  • Settlement agent’s misappropriation of funds imputed to the mortgagee

Issued November 28, 2016 

  • Actual knowledge of the true owner does not prevent a claim of adverse possession when the law prior to amendment in 2008 applies

  • Attachment of sale proceeds denied as there was insufficient evidentiary support for allegation that judgment debtor had a fraudulent intent

  • Action barred by contract provision requiring that an action for specific performance on a default by the Seller be commenced within 120 days of the “scheduled closing date”

  • Attorney for one of the depositors of an escrow receiving the escrowed  funds must distribute the proceeds as required by the escrow agreement

  • Notice requirements of RPAPL Section 1304 apply to an action to recover on a note secured by a mortgage

  • SCOTUS denies the Shinnecock Indian Nation’s petition for writ of certification in an action involving property in the Town of Southampton

  • When a mechanic’s lien does not name a lessee and the lien will not impact the lease, the lessee lacks standing to seek the cancellation of the lien

  • A defect in a notice of lending does not subordinate the lender’s building loan mortgage to mechanic’s liens.

  • Lender’s failure to enforce loan covenants which do not impact the amounts available for the improvements does not  require the filing of an amended Building Loan Section 22 affidavit

  • Process server’s affidavit of service constitutes prima facie evidence of service which is not countered by unsubstantiated claims that service was not received

  • Town of Hempstead Code amended to requiring a lender foreclosing on vacant, non-residential property to eliminate Code violations

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period January 1, 2017 – March 31, 2017

  • Appellate Division, Second Department orders the reimbursement of expenses incurred due to the improper filing of a notice of pendency

  • The filing of a successive notice of pendency is permitted when the new action involves an additional defendant and a new claim

  • Motion to cancel a notice of pendency denied because the moving party had not posted an undertaking as required by statute

  • Action commenced by lessee of an unrecorded lease to enforce its ROFR to purchase; action dismissed against purchaser’s mortgagee which was held to be a bona fide purchaser. Issues of fact remained as to whether the purchaser was deemed to have notice of the ROFR by reason of the tenant’s possession.

  • Declaration of Restrictions held invalid and unenforceable under RPAPL Section 1951 as it was of no actual and substantial benefit

  • Exercise of ROFR by Homeowner’s Association, which assigned its rights to a third party purchaser, upheld 

 

Issued November 3, 2016 - Special Edition 

  •  Mortgage recording tax’s “Additional Tax”  payable on IDA mortgages

 

 Issued September 26, 2016

  • Improvement above a building on land acquired by adverse possession allowed

  • NYS Attorney General revises regulations on protections for eligible senior citizens and eligible disabled persons not purchasing condominium and cooperative units

  • Construction of a barn and an access road on land subject to a conservation easement was consistent with the purpose of the easement

  • Grantors of a deed in lieu held an equitable mortgage remained in title and mortgage must be foreclosed

  • NYS Attorney General issues a further Guidance Document for new FinCEN reporting requirements

  • Commencing a second mortgage foreclosure before prior mortgage foreclosure was discontinued held a mere irregularity

  • A claimed violation of RESPA may not be employed as an affirmative defense in a mortgage foreclosure

  • Notice requirement of RPAPL Section 1304 does not apply when the borrower is deceased

  • Notice requirement of RPAPL Section 1304 apply to an action to recover on a note secured by a mortgage

  • Referee an upset price higher than the amount stated in the referee’s report a mere irregularity which did not affect a substantial right of a party

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period October 1, 2016 – December 31, 2016

  • NYS issues Annual Statistical Report for FY 2015-2016 Tax Collections

  • NYC Department of Finance announced an Amnesty Program on the collection of interest and penalties on certain unpaid violations

  • NYC Register will charge to file previously rejected, resubmitted financing statements

  • Bulk sale of remaining, unsold condominium units requires the approval of all of the partners of the Sponsor partnership

  • An Order requiring execution of a duplicate, original mortgage to replace a lost, unrecorded mortgage denied because the Plaintiff could not prove that it was the assignee

  • Grantee held to be a bona fide purchaser because the deed was executed and delivered before filing of a notice of pendency, even though the deed was later recorded

  • NYS amends NYC Administrative Code Section 1-2106 to allow an exemption from mortgage recording tax for a Housing Development Fund Company

Issued July 28, 2016 - Special Edition

  • FinCEN issue expanded requirements for title companies to report all cash sales of “high end” residential real estate. (See Current Developments February 17, 2016)

 
 Issued July 25, 2016

  • Title cannot be vested in a secured creditor under a Chapter 13 Plan without the creditor’s consent

  • Email exchanges between attorneys may result in a binding contract only if the attorneys are authorized in writing to bind their clients

  • Easement by implication arises if the claimed easement existed when title to the benefitted and burdened parcels was in common ownership

  • Deed executed when there was as default, delivered from escrow on a further default, held to be an equitable mortgage

  • Life estates in condominium and cooperative units do not reduce the value of the assets for determining New York’s Estate Tax

  • Mansion Tax applied to two parcels separated by a road conveyed by the same grantor by separate deeds

  • Judgment of foreclosure and sale amended to reflect publication in a different newspaper than as specified in the judgment

  • Motion to raise the defense of standing, raised five years after summary judgment was granted in a mortgage foreclosure, denied

  • Town of Hempstead Code amended to requiring a lender foreclosing on vacant, residential property to eliminate Code violations

  • Mistake in bidding instructions for foreclosure sale held not sufficient grounds to set aside the sale; further, the winning bid was not so inadequate as  to warrant setting aside the sale

  • Judgment of foreclosure and sale, and other documents, ordered amended nunc pro tunc to correct the misidentification of the tax lots of the property being foreclosed

  • Grantee of foreclosure deed lacked standing to assert a claim that the bid price paid was unconscionably low; the movant was not an obligor under the note or otherwise subject to a deficiency judgment

  • New York State enacts the “Zombie Property Remediation Act of 2016”

  • Action against the New York City Register for recording a fraudulent deed to the Plaintiff’s property dismissed

  • Zoning Board of Appeals can determine that, under Village Law Section 6-626, a street is a public street  by prescription

  • Tenant by the entirety.  not a party to a lease executed by his or her co-tenant, is entitled to joint possession with the tenant

  • TIRSA Policy Authentication Endorsement approved by New York State’s Department of Financial Services

  • For application of New York State’s Real Estate Transfer Tax, the step transaction doctrine does not apply to the “mere change” transfer of property to an entity followed  by the transfer of a minority interest in that entity

Issued June 1, 2016  

  • License fee granted under RPAPL Section 881

  • Protection of Bankruptcy automatic stay is only afforded the Debtor

  • Collection of rent during common charge lien foreclosure must be provided for in Condo By-Laws

  • Improvements within an easement which do not interfere with access are allowed

  • Mechanic’s lien extended nunc pro tunc for “good cause shown” when the property owners would not be prejudiced

  • Mortgages consolidated before the recording of a common charge lien are a first mortgage of record  under RPL Section 339-z

  • RPAPL Section 1307 obligations imposed on a foreclosing Plaintiff arise for the period after the entry of a foreclosure judgment

  • Mortgage remains valid accruing interest when a deed-in-lien was voided to the mortgagee’s designee

  • Plaintiff-assignee had standing to foreclosure a mortgage securing an “eNote”

  • Defendants should not have relied on an erroneously issued mortgage satisfaction when a foreclosure was later commenced

  • Ruling of Appellate Division, Third Department, affirming a lower court’s s holding that a small stream, part of which is usable only by means of a “portage” to circumvent a bedrock ledge and rapids, is navigable-in-fact is modified by the Court of Appeals, there being issues of fact to be considered

  • New Rochelle to add fire alarm “false alarm” charges to real estate tax levy

  • Option expired without agreement on an extension

  • Restrictive covenant prohibiting “tenement houses” does not bar construction of condominium units

  • Sheriff sale of New Hampshire property pursuant to a New York judgment cannot be vacated by a New York court

  • End of a public street held to be part of the public street by prescription under Village Law Section 6-626

  • Offer to dedicate a street on a filed subdivision map  not accepted by the municipality needs to be revoked by all residents of the subdivision who purchased in reliance on the offer of dedication

  • Rescinded Cooperative Endorsement to a title insurance policy was issued as a result of a mutual mistake
     

 Issued April 14, 2016

  • RPAPL Section 881 license granted to allow access to adjoining property

  • Permissive use does not support a finding of adverse possession

  • Statute of limitations to foreclose held tolled by bankruptcy filing

  • First mortgage survives foreclosure of a common charge lien

  • RPAPL Section 130 notice required in common charge foreclosures

  • 13 NYCRR Part 20 revised to limit renting of units prior to consummation of an offering plan

  • Seller cannot seek indemnification against their attorney for a violation of a covenant against grantor’s acts in their deed

  • Suit to recover on a Note allowed when property is released from mortgage being foreclosed in exchange for proceeds of sale

  • Attorney’s fee not awarded under RPL Section 282  in a mortgage foreclosure discontinued without prejudice

  • Defendant in a foreclosure lacks standing to contest lender’s compliance with pooling and servicing agreement

  • Requirement in a mortgage that a notice of default be delivered held superseded by a later executed CEMA

  • Lower court’s vacatur of order of reference, dismissal  of the complaint and the discharge of the notice of pendency in a foreclosure sua sponte reversed on appeal

  • Restrictive covenant enforced against a successor owner with constructive notice

  • Mortgage held to have priority over a lien for Medicaid assistance

 

 Issued March 1, 2016

  • NYS Attorney General issues a Guidance Document for new FinCEN reporting requirements and a revised Cooperative Policy Statement #1

  • Purchaser’s action to rescind contract of sale before the date of performance constitutes an anticipatory breach

  • Grant of an easement to a named person held appurtenant to the land and not an easement in gross

  • Property purchased by spouses during their marriage transferred to a QPRT held to be a marital asset

  • Motion to increase a bond filed to discharge a mechanic’s lien for interest on a possible judgment denied

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period April 1, 2016 – June 30, 2016

  • Court orders removal of fixtures and utilities from a party wall

  • Treasurer’s tax deed void when the record owner conveyed to a bona fide purchaser

  • Deed to grantees not having paid valuable consideration is not protected by the Recording Act

  • Religious Corporation formed under a Special Act did not require court approval to sell its real property

  • Religious Corporation may sell real property on obtaining consent from the NYS Attorney General

  • Counterclaims for fraud, negligent representation and reformation of a contract to sell development rights held precluded by express disclaimers of any representations in the contract

  • Construction activities enjoined on property within an expanded zoning lot owned by the transferee of FAR to be used on other property of the transferee

 

Issued February 17, 2016 - Special Edition

  • FinCEN requires title companies to report all cash sales of “high-end” residential real estate in  Manhattan, New York City and Miami-Dade County, Florida

 

Issued January 15, 2016

  • Adverse possession established by “tacking” onto possession by an unincorporated association

  • Unincorporated association can be sued by naming its President as the Defendant

  • Condominium common charge lien encompasses unpaid common charges and fees accruing since the notice of lien was filed

  • NYS Attorney General issues “Small Residential Building No-Action Letters”

  • Constructive trust imposed “to satisfy the demands of justice”

  • FinCEN issues an Order requiring title companies to report the natural persons behind companies paying all cash for high-end residential properties in Manhattan and Miami-Dade County

  • Tax block fee increased and a tax map verification fee imposed in Nassau County; tax map verification fee increased in Suffolk County

  • Grantee taking title after a mortgage was recorded may be able to assert the status of a bona fide purchaser if the prior grantees were bona fide purchasers

  • Lender on a reverse mortgage is not required to pay hazard insurance premiums and may foreclose for non-payment of such charges

  • The six-year statute of limitations for “an action based on mistake”, as to a person in possession of real property, runs from when the person has notice of the adverse claim

  • Articles posted to First American National Commercial Services Blog
     

 Issued November 16, 2015

  • Condominium common charge late fees exceeding the usury rate are not enforceable

  • NYS Attorney General posts to its “Hot Topics” memoranda on condominium and cooperative conversions

  • Contract cannot be rescinded for impossibility of performance since change in the zoning code was not unforeseeable

  • Seller was not required to disclose the rent stabilized status of tenancies since that information was on the public record

  • CPLR Section 3408 settlement conference is not required to enforce a security interest on a cooperative interest

  • Second Circuit Court of Appeals affirms dismissal of Shinnecock Indian Nation's lawsuit to recover property in Suffolk County

  • Action to recover money’s owed a mechanic can continue even though the notice of pendency to foreclose the mechanic’s lien has expired

  • Deceased joint tenant remained a necessary party to a mortgage foreclosure as mortgagee did not move to substitute a representative for the Estate, discontinue the action against the Estate or represent it would not seek a deficiency judgment against the Estate

  • Mortgage foreclosure may proceed notwithstanding action was commenced on the note since there was no final judgment entered in the action on the note

  • Ulster County Clerk will only accept an electronic RP-5217

  • Right of first offer in a lease expired when the lease terminated notwithstanding that the tenant remained in possession month-to-month

  • Right of first refusal expired when the property owner died since the grant of the right did not expressly bind his heirs and assigns

  • Clause in a promissory note reducing the interest rate if it was held to be usurious does not save the obligation from the defense of usury 

 

 Issued September 15, 2015

  • NYS Attorney General posts to its “Hot Topics” memoranda on condominium and cooperative conversions

  • Contract deposit forfeited as the time for closing was “of the essence”

  • Deed without a property description held void for uncertainty

  • Placement of generator in roadway did not interfere with the adjoining owner’s right-of-way

  • “De facto corporation doctrine” applies to limited liability companies

  • Endorsement to note attached by a paper clip was not firmly affixed as required by the UCC

  • Rulings on providing a payoff quotes to enable a junior lienor’s redemption in a mortgage foreclosure

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period October 1, 2015 – December 31, 2015

  • NYS Annual Statistical Report for FY 2014-2015 Tax Collections

  • Highway Law Section 189 (“Action for the removal of encroaching structures”) does not apply to streets within a City

  • County may reject the highest bid for property in the foreclosure of tax liens

Issued July 20, 2015 

  • Mortgage on property taken in condemnation cannot be foreclosed

  • Attorney General issues Memoranda on “Occupied Buildings and Part 20 Offerings”, “N.Y. Real Prop. Tax Law Section 421-a”, and “Tenant Buyouts”

  • Purchaser’s rights under the Uniform Vendor and Purchaser Risk Act merge on transfer of title

  • Claim that the seller breach representations under contract of sale held not barred by merger

  • Plaintiff could elect an action on the note when the suit to foreclose on the mortgage was “effectively abandoned”

  • Consolidated mortgage held to have priority over a lien for unpaid condominium common charges

  • Court must afford a foreclosing lender an opportunity to provide sufficient proof of fair market value for entry of a deficiency judgment

  • ‘Balancing the equities”,  the Court of Appeals directs a new foreclosure sale, overturning the referee’s transfer of title and the re-conveyance of the property after the notice of pendency had expired

  • Supreme Court, Kings County, dismissed an action to foreclose of a mortgage for the failure to comply with the notice to tenants requirement o RPAPL Section 1303

  • Mortgagor is not entitled to a payoff statement to reinstate a mortgage being foreclosed since there was no written contract to convey and no written commitment to make a mortgage loan

  • Court of Appeals rules that possession of the note confers standing to foreclose

  • Lack of standing to foreclose is not a jurisdictional defect

  • Court of Appeals holds that property to be conveyed by NYC to NYU  was not unequivocally intended to be parkland

  • Transfer by NYC  of part of Flushing Meadows Park requires state legislative approval

  • The grant of a right of first refusal held not subject to the “stranger to the deed” rule

  • When notes and mortgages are consolidated the prior notes and mortgages still exist

  • Transfers of condominium units to members of the property owning LLC are exempt as a mere change of identify or form of ownership

  • Purchaser should have exercised due diligence to determine the quantity of development rights being acquired
     

 

Issued June 9, 2015

  • NYS Department of Law Memorandum on FOIL requests for submitted plans not accepted for filing

  • Condo Board can assign to a third party  its right of first refusal to purchase

  • The UCC, not the RPAPL, applies to an action to determine claims to a cooperative interest

  • Misrepresentations as to heirship rendered void a deed and the mortgage executed by the grantee

  • Servient owner has not duty to maintain an easement over its property

  • Mortgagee entitled to rely on documents at closing indicating the signatory was the borrower’s sole member

  • A person claiming a non-record title interest can be granted a stay of a mortgage foreclosure since the validity of her alleged interest was not litigated

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period July 1, 2015 – September 30, 2015

  • Mortgagor of a mortgage loan held by a REMIC Trust does not have standing to challenge an assignment to the Trust for non-compliance with the Trust’s Pooling and Servicing Agreement

  • Presumption of impropriety when an agent under a power of attorney makes a gift to himself or herself

  • Purchase money mortgage may not have priority

  • NY Court of Appeals holds that an action contesting an deed allegedly forged is not subject to a statute of limitations

  • Trustees of the Town of Southampton have limited authority to regulate activities on ocean dunes

  • Refinance Rate in the TIRSA Rate Manual for 1-4 family residential property changed effective August 1, 2015

  • Receipt for the payment of transfer tax to the City of Yonkers revised

  • Step transaction doctrine applied to application of New York City’s Transfer Tax



Issued April 27, 2015 - Special Edition

  • Changes to the NYC-RPT in ACRIS effective May 18, 2015


Issued April 21, 2015

  • Sponsor held not to have standing to collect from unit owners the allocated costs of obtaining a  421a tax abatement

  • Disinherited child could not receive an interest in family home passing through intestacy

  • Property transferred to a limited partnership was adeemed and did not pass to the devisee under Grantor’s Will

  • Mechanic’s lien filed against the fee estate discharged because the fee owner did not consent to work performed for a tenant

  • Debtor discharged in bankruptcy held not to have a right to notice of the hearing held by a referee to compute in a mortgage foreclosure

  • Action can be brought against a guarantor when the foreclosure action was discontinued without the entry of a judgment

  • Merger of lenders does not require an assignment of the note and mortgage

  • Securitization of mortgage held not to create a partnership or agency relationship with the borrower

  • NYC Tax sale requires notice to mortgagees which have filed an owner’s registration or in rem card

Issued March 2, 2015 

  • Delivery of a notice to redeem property from a tax sale proceeding does not violate the automatic stay in a Bankruptcy against the property owner
  • Deed in escrow held to be an equitable mortgage and not a deed-in-lieu of foreclosure
  • Lands under water owned by the owner of the adjacent upland passes by a conveyance of the upland  without specific description
  • Life tenant’s estate termination due to the life tenant’s failure to pay real estate taxes and insurance premiums
  • Assignee of an unrecorded mortgage held to have an equitable lien based on equitable subrogation
  • RPAPL Section 1304 and Section 1306 notices are not required when the borrower died before the mortgage foreclosure is commenced
  • MERS was not the holder of the mortgage note and did not have the authority to assign the note to the foreclosing Plaintiff
  • Third Department affirms holding that a small stream, part of which is usable only by means of a “portage” to circumvent a bedrock ledge and rapids, is navigable-in-fact
  • Restrictive covenants governing a homeowners association cannot be enforced against strips of land dedicated to the municipality
  • Tax deed did not convey lands erroneously included in the tax lot
  • UCC termination statement is effective if authorized notwithstanding it identified the wrong security interest

Issued January 12, 2015 

  • Debtor’s interest in a rent-stabilized lease is exempted from the estate of the bankruptcy Debtor under Debtor and Creditor Law Section 282

  • New York State’ Uniform Fire Prevention and Building Code amended to require  standards for carbon monoxide detectors in restaurants and other commercial buildings

  • New York Attorney General’s Real Estate Finance Bureau issues “Submission of Building Plans in Electronic Format in Lieu of Paper”.

  • Option did not ripen into an enforceable bilateral contract for which specific performance could be ordered

  • Appellate Division, First Department, holds that a contract vendee which assigned its interest  was subject to damages for the tortious interference with the Plaintiff’s contract to purchase the same property

  • No agreement satisfying the Statute of Frauds in an online auction

  • Entity owned indirectly by the Seneca Nation of Indians was not protected by sovereign immunity

  • Misdescription, not the misidentification, of the name of the owner in a filed mechanic’s lien can be corrected by amendment nunc pro tunc

  • It would be unjust under the facts presented to impose the subordination penalty because the building loan agreement was filed after building loan mortgage was recorded

  • Statute of limitations applicable to an action to require a county recorder to recorded a mortgage executed in 2005, the original of which was lost or destroyed

  • Cause of action properly pleaded against a mortgagee under RPAPL Section 1307 (“Duty to maintain foreclosed property”)

  • Executrix of the Estate of deceased husband holding title with his wife as joint tenants was not a necessary party to a mortgage foreclosure

  • Referee’s report finding that the property should be sold as a single parcel, not as separate parcels in a thirty lot subdivision for which approval had been obtained, upheld

  • Nassau County requiring tax lot verification to record

  • NYC Register will accept, subject to review, an affidavit stating why an EIN or SSN is not listed on transfer tax returns

  • Rockland County Clerk will not accept any handwritten or typewriter completed RP-5217

  • Reduced transfer tax rates for REITS extended to September 1, 2017

  • NY Court of Appeals holds that the dissolution of a Mitchell-Lama housing project and its reconstitution as a private cooperative corporation under the Business Corporation Law was not transfer taxable

  • Transfer by Settlor to an Intentionally Defective Grantor Trust for $5,000,000 is subject to transfer tax

 Issued December 22, 2014 - Special Edition

  • UCC requirements as to stating the name of the Debtor on a financing statement amended

 Issued November 10, 2014

  • Federal District Court issues an ex parte Order of Attachment under CPLR Section 6211

  • Real Estate broker held responsible to check the public records to verify whether property was serviced by a public sewer

  • Compensation for State’s taking of a temporary easement was not required to account for damage alleged to have been suffered by the balance of the claimant’s land

  • Second mortgage, consolidated with an existing first mortgage, held to be entitled to priority over a condominium’s common charge lien

  • Complaint and notice of pendency in a mortgage foreclosure ordered amended to correct a scrivener’s error in the recital of the applicable tax lot

  • Allonge is required to be affixed to the note being assigned under UCC 3-202(2)

  • Fair Debt Collections Practices Act claim barred by statute of limitations; General Business Law Section 349 claim barred as it did not generally impact consumers

  • Action to set aside a deed and vacate a judgment of foreclosure barred by res judicata

  • Although note had no express  right of prepayment and contained a n0n-waiver clause, the mortgagee accepted pre-payments

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period January 1, 2015 – March 31, 2015

  • Ruling that NYC alienated public parkland without legislative approval reversed on appeal

  • Provision in an agreement for the reversion of title held unenforceable under RPL Section 345

  • Title policy insures there is a legal right of access, not actual physical access

  • Title policy does not insure against water charges entered post-policy

  • UCC financing statement falsely filed against a judge expunged under UCC Section 9-518

Issued September 12, 2014

  • Access easement may be modified so long as the so long as the easement holder’s right of passage is not impaired

  • Increase in homestead exemption applies to pre-existing judgments
    Typographical error in Memorandum of Sale does not require setting aside a foreclosure sale

  • A certificate of authority is not required to confirm the authority of a foreign state notary

  • Vendees under a terminated contract of sale had no rights to assert in a strict foreclosure

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period October 1, 2014 – December 31, 2014

  • That the holder of a mortgage may lack standing to foreclose does not impact the validity of the mortgage

  • Modification of mortgage held not to subordinate the lien to a junior mortgage

  • NYS issues Annual Statistical Report for FY 2013-2014 Tax Collections

  • Zoning lot merger was not effective without a waiver executed by a mortgagee

  • Building constructed with FAR from adjoining property that exceeded what was transferrable; modification of building is an issue for the NYC Building Department

Issued July 29, 2014

  • In Rem tax foreclosure sales can be avoided as fraudulent transfers

  • Bankruptcy Code Section 363(f) will rarely permit a sale free and clear of a lessee’s interest

  • Original offer to sell could not be unilaterally revived by acceptance after a counteroffer

  • Absent prior notice  to the seller of an alleged defect in the property’s certificate of occupancy, the buyer was required to tender performance

  • Broker’s knowledge of a condition at the property, required to be disclosed under the Property Condition Disclosure Act, was imputed to the sellers

  • Mortgage made by owner to whom property was conveyed after a forged deed may be void

  • Even if a mortgage is void, the lender may be equitably subrogated to the extent its loan proceeds were applied to satisfy a prior mortgage

  • Executor surcharged for selling property below its fair market value

  • Notice provisions of Lien Law Section 59, for the vacating of a mechanic’s lien, are strictly applied

  • In an action for divorce, the husband was afforded the option of purchasing his wife’s interest in the marital residence

  • Supersession Clause  of the ECL does not prevent localities from prohibiting fracking in their regulation of land use

  • Lower court’s sua sponte dismissal of foreclosure complaint and lis pendens reversed

  • Board of Managers cannot recover accruing common charges from a mortgagee due to delay in prosecuting the foreclosing

  • Allonge must be affixed to the mortgage note

  • Injunctive relief in federal court to prevent enforcement of a  judgment of foreclosure entered in state court barred by the “Rooker-Feldman Doctrine”

  • Lower mortgage tax rate applies to a mortgage on condominium units intended to be combined

  • Homeowners whose properties were subject to foreclosure do not have standing to enforce agreements applicable to a REMIC Trust

  • Mortgagee subject to an equitable interest which could have been ascertained on a proper inquiry by the mortgagee

  • Agreement entered into by an incorporated Protestant Episcopal Church without the consent of the bishop and the standing committee of the Diocese held not enforceable

  • Suffolk County Clerk requires that deeds be accompanied by Form RP-5217-PDF

  • Mere occupancy by a tenant-in-common does not make the tenant liable for use and occupancy

Issued June 4, 2014

  • Managing agent does not have standing to appeal a ruling on adverse possession

  • Claimant’s judicially estopped from asserting an interest in real property since the interest was not claimed in her bankruptcy petition

  • Common charge liens extinguished by foreclosure judgment cannot be asserted against purchaser of unit

  • “Doctrine of unclean hands” may bar a party from seeking equitable relief

  • Restrictive covenant not set forth in contract of sale but in the closing deed is enforceable

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period July 1, 2014 – September 30, 2014

  • Exemption for New York Estate Taxes increased

  • No private right of action exists under “HAMP”

  • A bona fide purchaser for value is protected despite knowledge of an appeal when notice of pendency is discharged

  • A vendee’s lien is not enforceable against a bona fide purchaser for value when notice of pendency is discharged

  • Restrictive covenant limiting animals in a residential subdivision to pets enforced to remove chickens kept as pets

  • Setback restriction held enforceable by an adjoining owner as part of a common development scheme

  • For application of the statute of frauds, it is presumed that the balance of the purchase price is to be paid at closing and the closing will be within a reasonable time

  • Mortgagee barred from contesting a tax sale after the passage of three years from the date of the tax deed

 Issued April 7, 2014

  • Ethics Opinion issued on seller’s concessions

  • Court finds that land is benefitted by an easement by necessity

  • Mechanic’s lienor need not in all instances provide an itemization of labor and materials

  • Interest of management company is not subject to the foreclosure of a mortgage

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period April 1, 2014 – June 30, 2014

  • LLC law Section 2001, providing that a member is to receive the fair value of its membership interest, held not to apply to investors in a partnership with interests arising from participation agreements

  • A HECM reverse mortgage cannot be foreclosed for the failure to pay a water bill

  • Setback restrictions on a subdivision map held not to be deed restrictions running with the land

  • Rule issued on “Public Access to Certain Filings” in the Surrogate’s Court

  • Notice of a tax sale is not required to be afforded a religious corporation which sold the property without a court order

  • Title Insurance Agent Licensing enacted

Issued February 3, 2014 

  • Long-time use of an easement is evidence of its scope and purpose

  • State is not liable for a County Clerk’s erroneous docketing of a transcript of judgment

  • Mechanic’s lien filed against a lessee’s interest at JFK Airport is a public improvement lien

  • Conclusory affidavit is not sufficient to establish market value in a proceeding to set a deficiency judgment in a mortgage foreclosure

  • Easement holder not named in a foreclosure cannot be the object of a strict foreclosure or a re-foreclosure

  • NYS Department of Taxation and Finance issues Bulletins “Mortgage of a Guarantee Given as Security for a Credit Line Debt” and “Mortgage Recording Tax on Mortgage Transactions After a Deed in Lieu of Foreclosure”

  • “Non-Profit Revitalization Act of 2013” enacted

  • Successive notices of pendency cannot be filed (except in a mortgage foreclosure) when the lis pendens has been canceled, vacated, expired or become ineffective

  • Ownership of property for tenants in commons’ recreational use does not create a partnership

  • The part-performance exception to the statute of frauds does not apply to other than a matter involving a real estate contract

 

Issued December 9, 2013 

  • Non-structural encroachments may be adverse if not de minimis

  • First recorded consolidated mortgage had priority over a common charge lien

  • Uniform Guardianship and Protective Proceedings Jurisdiction Act enacted

  • Action on mortgage note dismissed for the failure to provide RPAPL Section 1304 notice 

  • Mortgage made to a local development corporation exempt from mortgage recording tax

  • NYS Annual Statistical Report for FY 2012-2013 Tax Collections

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period January 1, 2014 – March 31, 2014

  • Tax Law Section 258-a (“Payment of tax on instruments not recorded”) amended

  • Chapter 455, Laws of 2013 authorizes NYC HPD to bring a special proceeding to appoint an administrator for distressed property

  • Mere change exemption for NYS Transfer Tax applied on conveyance of condominium unit to original property owner

  • Conveyance made by purported President of corporation is not void; lien of a bona fide incumbrancer for value upheld

  • Chapter 490, Laws of 2013 authorizes a special proceeding to redact or expunge a falsely or amended Sovereign Citizen filed financing statement

  • A on-or-two family residence need not be owner-occupied for civil usury to apply

Issued October 16, 2013 

  • Tree owned by adjoining owners as tenants in common

  • Owner of property, part of which was lost by adverse possession, subject to damages for demolishing a wall on the adversely held

  • NYC Commercial Occupancy Tax is not due on a lease recharacterized as a financing

  • IRC Section 1031 exchange of corporation’s sole property held to be in its ordinary course of business

  • Mansion Tax does not apply to the transfer of a condominium unit in a “transient hotel”

  • Deputy Chief Administrative Judge for Courts Outside New York City directs the use of a Foreclosure Action Surplus Monies Form

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Act for the period October 1, 2013 – December 31, 2013

  • Corporation’s President had apparent authority to mortgage its property

  • Personal representative of a person dying testate has to be Defendant in the foreclosure of a mortgage on the decedent’s property

  • Surplus monies distributed to a husband as part of the equitable distribution of marital property, prior to the claims of a junior mortgagee

  • Real estate taxes not paid under protest can be recovered if payment was due to a material mistake

  • Public subsidy is included in consideration for application of the NYC RPT

  • Title is not established by a deed from an entity which never held title

  • Provision for the reversion of title if the property was not operating as a golf course held void for violating the rule against perpetuities

 Issued August 8, 2013

  • MTA not per se immune from claims of adverse possession

  • Creditor’s attorney’s fees may be awarded when a deed is voided under Debtor and Creditor Law Section 276

  • Individual officers of a corporation may be personally liable under Lien Law Article 3-A for knowingly participating in a diversion of trust assets

  • Certificate of Merit required in a residential mortgage foreclosure

  • NYS Department of Taxation and Finance ruling allows for a mortgage tax credit under Real Property Law Section 339-ee

  • Residential rate for mortgage recording tax is applied by NYS on a mortgage of two units intended to be combined into one primary residence

  • Residential rate for NYC transfer tax applies to each deed when separate deeds convey two adjacent residential properties

Issued July 2, 2013 - Special Edition

  • Local transfer taxes in Mount Vernon, Peekskill and Yonkers are required to be paid in order for a deed to be recorded by the Westchester County Clerk

Issued June 24, 2013 

  • Agreement to pay Homeowners’s Association dues implied by purchase of property within gated community

  • Funds advanced for the acquisition of real property are not primed by later filed mechanics’ liens

  • Grantor liable under covenant against grantor’s acts even though easement was of record

  • Doctrine of Practical Location

  • Entity owned by Indian tribe held not to be an “arm of the tribe” protected by sovereign immunity

  • Two family dwelling being converted to a single family dwelling is subject to mechanics’ liens filed within eight months of the completion of work

  • Judge’s ruling, dismissing foreclosure for lack of standing, based on the Judge’s independent internet-based research, reversed on appeal

  • Sanctions imposed against foreclosing plaintiff for the failure to conduct settlement negotiations in good faith

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period July 1, 2013 – September 30, 2013

Issued April 22, 2013 

  • Bankruptcy Court holds that there can be a fraudulent transfer of wholly-exempt (“homestead”) property under the UFCA

  • Damages for breach of a contract is the difference between the contract price and the fair market value of the property at the time of the breach

  • Consolidated mortgage on a condominium unit held to be a “first” mortgage under the Condominium Act, senior to a common charge lien

  • Forged deed is void

  • Lower court ruling discontinuing a foreclosure overturned on appeal as Plaintiff was deprived of due process

  • Bona fide purchasers are protected against reinstatement of an erroneously discharged mortgage

  • Referee’s foreclosure deed is effective when accepted by the grantee

  • NYC Local Law 4 requires notice of a foreclosure to HPD

  • A Free Association Library is not exempt from mortgage recording tax

  • NYS Form TP-584 revised

  • Revocation of a power of attorney must be recorded to be effective

  • Solar panels may violate a restrictive covenant against dangerous, noxious or offensive uses

Issued April 4, 2013 - Special Edition

  • Revised NYS Form TP-584, and Instructions TP-584.I, revised effective April 15, 2013

Issued March 7, 2013

  • Court rules that an implied easement of necessity applies

  • Electronic filing required in all cases commenced in NY County Supreme Court on and after February 19, 1013

  • Interest rates to be charged for the late payment of mortgage recording tax and

  • NYS transfer tax for the period April 1 – June 30 posted

  • Small stream part of which is usable only by means of a “portage” to circumvent a bedrock ledge and rapids held to be navigable-in-fact

  • Real estate tax abatement program for eligible cooperative and condominiums in NYC extended

  • Servicemembers Civil Relief Act amended to extend from nine to twelve months the period after military service within which an action to foreclose a mortgage securing an obligation originating prior to service can be stayed

  • City of Yonkers transfer tax payable within seven days of the date of transfer instead of thirty days

Issued January 16, 2013

  • Statutory interest applies when the parties to a contract do not specify an exclusive remedy

  • When there is more than one Trustee and the Trust does not state otherwise both Trustees must exercise their powers

  • Action to reform a deed must be brought within six years

  • Conveyance of land abutting a pond or stream includes land under the pond or stream to its center line unless a contrary intent is shown

  • Execution of a mortgage by one joint tenant does not sever the joint tenancy

  • Seller’s consent to work done at the direction of a contract vendee must be shown by some affirmative act for a filed mechanic’s lien to be valid

  • Mortgage foreclosure dismissed because neither the summons nor the complaint stated that the Plaintiff bought the action as the agent or servicing agent of the true holder of the note

  • Original mortgagee can continue a foreclosure even though the mortgage was assigned after the action was commenced unless the court directs a substitution of parties

  • Foreclosing mortgagee maintaining the property as required by New York State law not granted a motion to vacate judgment

  • Failure to provide the notice required under RPAPL Section 1303 is a jurisdictional defect

  • Deed in lieu does not subordinate mortgage to a junior lien

  • Local Law requires a foreclosing mortgagee to notice the Village of Hempstead

  • Yield maintenance formula applied as set forth in the Note

  • Deed by an entity formed under the NPC Law delivered without required Supreme Court approval   and the transferee’s mortgage are void and cannot be ratified

  • Orange County Clerk issues a notice regarding Form RP-5217 PDF

  • Reference in a second mortgage to “Existing Indebtedness” puts a prospective purchaser on constructive notice of a misindexed first mortgage

  • Notice as constitutionally required was given in tax sale proceeding when mailed to property owner’s former residence in New Jersey

Issued January 7, 2013 

  • Mortgage Tax on Mortgages Partially Securing Multiple Obligations

Issued December 10, 2012 

  • NYS Department of Taxation and Finance affirms that mortgages on 1-6 family residential property made to Federal Credit Unions are not subject to the Special Additional Mortgage Recording Tax

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period January 1, 2013 – March 312, 2013

  • Nassau County increases block index fee

  • NYC real estate tax rates revised for FY 2012-2013 (July 1, 2012 – June 30, 2013)

 

Issued November 2, 2012

  • Automatic stay does not apply to property sold in foreclosure a few hours before bankruptcy filed

  • Ruling affirmed that purchaser of property burdened by an easement, with actual or constructive notice of the easement, is estopped from denying the existence of the easement

  • NYS and NYC postpone tax filing and payment deadlines due to Hurricane Sandy
    Second Circuit Court of Appeals affirms District Court ruling dismissing claims of The Onondaga Nation to lands in upstate New York

  • Action contesting validity of conveyance barred due to application of the doctrine of laches

  • Mechanic’s liens extended nunc pro tunc

  • 90 day period to move in a mortgage foreclosure Motion for a deficiency judgment held to run from first delivery of the referee’s deed

  • MERS held to not have authority to assign Note to the foreclosing Plaintiff

  • Referee directed to issue a new report as to mortgage foreclosure since there was no hearing

  • Appellate Division, Second Department, holds that mortgages issued by federal credit unions are subject to mortgage recording tax

  • Mortgage satisfaction executed in error, after HELOC was not properly closed by the borrower, ordered expunged from the real estate records

  • Mortgage executed by only one tenant in common, but executed in the ordinary course of business of the owners joint venture, held binding upon both tenants in common

  • Notice of pendency filed against 18 properties in an action to distribute marital assets held not properly canceled

  • Restrictive covenant enforceable by a tenant of the benefitted property

  • Rockland County Clerk requirements as to the TP-584 and RP-5217

  • Statute of limitations as to latent defects in the construction of homes runs from the closing date

  • Easement still effective as to property redeemed from a tax sale

  • Mansion Tax applies to two units separately purchased by spouses

  • NYC RPT does not apply to reconstitution of Trump Village as a private cooperative corporation

Issued September 4, 2012

  • Owner of property burdened by an easement is not prohibited from using the easement area

  • Electronic recording of instruments affecting real property is authorized in New York effective September 24, 2012

  • Constructive knowledge is not an absolute bar to application of the doctrine of equitable subordination

  • Purchaser obligated to close when the Seller produced the satisfaction of a mortgage after the extended closing date

  • Mortgage is enforceable when a note made to the lender is secured by a mortgage made to MERS

  • Mortgagee not charged with constructive notice of a mortgage rescue scheme

  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period October 1, 2012 – December 31, 2012

  • NYS issues Annual Statistical Report of 2011-2012 Tax Collections

  • Absent a scrivener’s error, and since the wife of the mortgagor (they being tenants by the entirety) did not intend to be bound by the mortgage, the Supreme Court, New York County would not reform a mortgage to add the wife as a mortgagor

  • Receiver not appointed to sell former wife’s cooperative unit to satisfy her former husband’s distributive share of marital assets

  • Mortgage lender’s constructive knowledge of an outstanding mortgage held not to be an absolute bar to application of the doctrine of equitable subrogation

  • Mortgagee was entitled to the protection of the Recording Act since less than all of the loan proceeds were applied to discharge an antecedent debt

  • Deed from a religious corporation without court approval, and the re-conveyance of the property, voided

  • Village of Dobbs Ferry, Westchester County, requires the inspection of residential property before transfer of ownership

Issued August 1, 2012

  • Action to foreclose a common charge lien dismissed since it was brought against a deceased person
  • Sellers could removed an encroachment notwithstanding delivery under contract was to be in “as  is” condition
  • Parking on easement enjoined as “unreasonably obstructive to the servient estate”
  • The notice requirements of the Home Owners Theft Prevention Act do not apply to the foreclosure of a homeowner’s association lien for the failure to pay assessments and related costs
  • Order denying the Defendants’ application to waive their default vacated to enable standing issue to be raised
  • NYC Local Law requires notice of a mortgage foreclosure be given to the City’s Department of Housing Preservation and Development
  • Foreclosing mortgagor not authorized to make advances to pay real estate taxes and to preserve and maintain the property after a receiver was appointed
  • Pooling and Servicing Agreement did not afford MERS the authority to assign a note
  • November 2011 NYS Bulletin on mortgage tax reissued
  • Notice of pendency indexed in a block index is constructive notice
  • Limitation on use of a lot for a camp or a summer cottage prohibited year-around residency
  • No constitutional duty to afford notice of a right in Orange County to re-purchase tax foreclosed property 
  • Assignee under an mortgage assignment recorded after list of delinquent taxes was filed is not entitled to notice of tax sale
  • Notice of a tax lien sale must be mailed to the property owner at “its actual address”

Issued June 6, 2012 

  • Recording of a deed creating a right of way over the grantor’s remaining land is constructive notice to a purchaser of the servient parcel
  • Constructive knowledge held not to bar application of the doctrine of equitable subrogation
  • Dismissal of foreclosure for failure to submit an attorney’s affirmation reversed on appeal
  • Assignment of note by physical delivery together with assignment of the related mortgage by MERS conferred standing
  • Lack of standing to foreclose is an affirmative defense which may be  waived in commercial loan documents
  • Mortgage made by the United Nations Development Corporation is exempt from mortgage recording tax
  • NYS Department of Taxation and Finance issues a Bulletin on the application of mortgage recording tax to the securing of breakage costs under an interest rate swap agreement
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period July 1, 2012 – September 30, 2012
  • Lower court ruling denying a petition to approve the sale of real property owned by a Type D not-for-profit corporation owning low income housing affirmed on appeal
  • On entry of judgment for partition, a record owner of the property cannot assert a homestead exemption in Bankruptcy to avoid liens on the property
  • Steel beams extending two inches beyond the center of a party wall may remain
  • Separation agreement held not to sever a tenancy by the entirety

Issued May 4, 2012 

  • Tenant held to obtain rights senior to those of tenant of adjacent property by adverse possession
  • Permissible level of cellular tower emissions is preempted by the federal Telecommunications Act of 1996
  • Person taking title under a Will barred by laches from attacking a mortgage executed by the grantees of life tenant
  • Statute of limitations to litigate a taking commenced to run when title vested in the condemnee, not on the date the alleged illegality of the taking was discovered
  • Owner’s  consent  to work being done by a tenant supported filing of a mechanic’s lien against the fee
  • A mechanic’s lien cannot be filed for a brokerage commission alleged due to services rendered to the prospective tenant
  • Mortgage could not sue to recover fire insurance proceeds since it had not moved for a deficiency judgment
  • Bankruptcy Court ruling as to MERS and standing reversed as the Order was an “improper advisory opinion”
  • Partial settlement in action brought by NYS against lenders and MERS
  • Corrective mortgage assignment not afforded retroactive effect to bar a claim of lack of standing
  • Assignee of mortgage under an assignment executed after the  foreclosure commenced  can continue the action even  if not substituted as Plaintiff
  • Mortgage given as collateral for a bail bond is subject to mortgage recording tax
  • Penalty for the late filing of an RPT is not due if the tax was timely paid
  • Federal Housing Finance Agency prohibits supervised agencies from investing in mortgages on properties subject to private transfer fees
  • “STAR” tax exemption may be suspended for past-due state tax obligations
  • Restrictive covenant restricting construction on an adjoining lake is enforceable
  • Contract extension agreement was not enforceable absent execution by Seller

 

Issued March 14, 2012 

  • Contract deposits for condo units were properly ordered returned by the Attorney General notwithstanding a scrivener’s error as to the date on which they were entitled to rescind their contracts
  • Son seeking to void deed from his mother to his sister lacked standing
  • First Judicial District, Supreme Court, Civil Branch is requiring electronic filing of litigation documents
  • Violation of NYC Administrative Code requirements concerning excavation may result in strict liability
  • Lender held to have an equitable lien even though the deed to the mortgagor was forged
  • Judgment of foreclosure vacated on the property owner’s claim that he was fraudulently induced to convey his home to a “straw buyer”; the foreclosing party failed to establish that it was a bona fide encumbrancer for value
  • Lower court ruling dismissing compliant in a mortgage foreclosure for the failure to produce all loan documents overturned on appeal
  • New York State Attorney General commences an action against various lenders and MERS
  • Default of junior lienor not vacated due to its not having a reasonable excuse or a meritorious defense
  • Attorney General is not required to be notified of the foreclosure of a mortgage on property of a religious corporation
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period April 1, 2012 – June 30, 2012
  • Nassau County requiring that a Referee’s deed list the Defendant mortgagors as the grantor
  • Petition to approve the sale of real property owned by a Type D not-for-profit corporation owning low income housing denied
  • Minimal violation of a height restriction not enjoined
  • Mortgage held to have priority on grounds of equitable subrogation
  • Suffolk County Clerk’s Office announces a recording fee increase
  • Notice by regular mail for a tax sale upheld
  • Westchester County announces procedure for rejected documents submitted for recording

Issued February 9, 2012

  • Survey without an affidavit of the surveyor was not competent evidence of an alleged encroachment
  • Benefit Corporations can be incorporated in New York as of February 10, 2012
  • Revised Forms IT-2663 and IT-2664 for 2012
  • Action for removal of a grantee from title under Civil Rights Law Section 80-b is not extinguished by the death of the Plaintiff
  • Lien Law Article 3-A does not apply to funds received to acquire property
  • Conversion of a limited partnership to a limited liability company nullified for the lack of consent of a certain class of the limited partnership
  • Private common law claims of breach of fiduciary duty and gross negligence are not barred by the Martin Act
  • Borrowers ordered by Court to re-execute lost  or misplaced mortgage documents it is found they received the loan proceeds
  • Court orders that an erroneously filed satisfaction of a mortgage being foreclosed be vacated
  • Assignment of mortgage a nullity when the note was transferred to a different named entity
  • Action dismissed for lack of standing for lack of proof that a note was assigned to a prior holder of the mortgage and the Plaintiff did not possess the noteStanding is a jurisdictional defect not subject to the waiver provisions of CPLR Section 3211(e)
  • Collateral assignee of a mortgage being foreclosed need not be joined in the Action
  • Referee is responsible for penalties and interest on the later filing of a transfer tax return for payment of New York City’s Real Property Transfer Tax

Issued December 16, 2011

  • Power of appointment to change the interests of remainder persons under deed held effective
  • Estate of deceased  joint tenant not entitled to contribution from surviving joint tenant
  • Mechanic’s lien to be amended nunc pro tunc to properly describe property
  • Judgment of foreclosure amended to allow for a deficiency judgment against guarantors
  • Issue of standing allowed to be raised in an amended answer
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period January 1, 2012 – March 31, 2012
  • NYS issues Annual Statistical Report for FY 2010-2011
  • Tax Bulletins on Mortgage Recording Tax, the State’s Real Estate Transfer Tax, and the “Mansion” Tax posted
  • No statute of limitations on the collection of unpaid real estate taxes
  • Suffolk County requirements for a CEMA when there is no new money secured
  • Strict compliance with requirements for the notice under UCC Section 9-611(b) is a condition precedent to a cooperative unit foreclosure

Issued November 1, 2011

  • Lien of a judgment may survive the discharge of the debtor’s liability in bankruptcy
  • NYSBA Ethics Committee rules on Seller’s Concessions
  • Easement held to have been extinguished by abandonment
  • Statute of limitations on discovery held not to run from recording of a fraudulent deed
  • United States Supreme Court denies certiorari in Oneida Indian land claim litigation
  • Renewal judgment obtained fourteen years after the judgment was first docketed
  • Mechanic’s Lien amended to correct the name of the true owner
  • Mortgagee held to properly rely on authority of a member under the mortgagor’s operating agreement
  • Defense of lack of standing to foreclose dismissed for not being raised in the defendant’s answer or in a pre-answer motion to dismiss
  • Mortgage made to the New York Power Authority and an agent for lenders is exempt from mortgage recording tax
  • Payoff must be accompanied by a written direction to close the related credit line
  • Statute of limitations to enforce a NYS tax warrant amended
  • Putnam County to require an electronic endorsement page
  • Restrictive covenant applied to prohibit a lease of mineral rights
  • Favorable transfer tax treatment for REITS extended

Issued September 27, 2011 - Special Edition

  • Legislation signed to allow for electronic recording in New York
  • Legislation signed to prohibit Private Transfer Fee Obligations

Issued September 8, 2011

  • Appellate Division, Second Department, holds that the 2008 amendments to the adverse possession statutes are to be applied prospectively
  • Project Loan Mortgage held subject to requirements applicable to buildings loans
  • A contract lacking mutuality of obligation is not enforceable
  • Corporate officers executing leases after corporate- tenant had dissolved held personally liable for rent alleged to be due and owing
  • Pilot Project for the online preparation of Form RP-5217 announced
  • Federal restitution claims not barred by state law statute of limitations
  • New York State Insurance Department issues an Opinion on “Real Estate Broker Marketing Arrangements with Title Insurance Agents.”
  • Possible “blanket” mechanic’s lien to be amended to encumber only units retained by the sponsor
  • Default in a mortgage foreclosure for the failure to receive service was not excusable under CPLR Section 5015 when the service address with the NYS Department of State was not updated
  • Court opines that MERS can act as nominee for the lender holding the secured obligation
  • Bidder at foreclosure sale required to complete the purchase notwithstanding that the closing was delayed for three years by litigation amongst mortgagees
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer tax and Mortgage Recording Tax for the period October, 2011 – December 31, 2011

Issued July 26, 2010

  • Purchaser of property burdened by an easement with actual or constructive notice of the easement is estopped from denying the existence of the easement

  • NYS Insurance Department Opinion holds that a residential real estate broker may not refer its clients to attorneys on an “approved” or “recommended” list if the attorneys, in turn, refer those clients to the broker’s affiliate title agency

  • Assignment of mortgage by MERS did not transfer the note and the assignee therefore lacked standing to foreclose

  • Notice requirement under RPAPL Section 1304 is  condition precedent to the commencement of a mortgage foreclosure against property improved by a 1-4 family dwelling

  • Notice requirement under RPAPL Section 1303 applies to the foreclosure of a homeowners association lien

  • Notice requirement as to tenants under RPAPL Section 1303 did not apply since the foreclosure action was commenced prior to the effective date of the notice requirement, notwithstanding that the judgment of foreclosure was entered after the effective date

  • Ninety day period in which to move for a deficiency judgment runs from the date of the delivery of the referee’s deed not from the date of the recording of the deed

  • Mortgages made to federal credit unions to secure loans made to its members are not exempt from mortgage recording tax

Issued May 24, 2011

  • Adverse possession requires a reasonable basis for a belief that the persons claiming adverse rights owned the disputed property
  • Installation of driveway lights, the planting of foliage and shrubs, and landscaping and lawn maintenance do not support a claim of adverse possession
  • Actions of town did not sufficiently impact the value of the property to amount to a de facto taking
  • Contract vendees did not diligently pursue a mortgage loan application when only one of them applied for the loan
  • Cooperative Unit foreclosure enjoined for the failure of the lender to comply with the notice requirements of UCC Section 611(f)
  • Banking Departments issues Opinion that the Home Equity Theft Protection Act does not extend to a deed in lieu of foreclosure
  • Judgment must only be docketed against the debtor’s surname to be a valid lien
    Violation of the requirement in Judiciary Law Section 470, that an attorney residing outside of New York maintain an office in New York, does not require a foreclosure action to be dismissed
  • No building loan contract is required if there is no promise to apply the mortgage loan proceeds to the making of an improvement
  • A deficiency judgment is determined based not on the potential value of the property being foreclosed but on its value on the date of the foreclosure sale
  • MERS has the authority to assign a note and the related mortgages to a party which forecloses
  • Surplus money from a foreclosure sale of property that was owned by a husband and his wife is, in the Second Department, held by them as tenants by the entirely
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer tax and Mortgage Recording Tax for the period July 1, 2011 – September 30, 2011
  • Notice of pendency filed following expiration of a notice of pendency for a similar action canceled and complaint dismissed
  • Property purchased as tenants in common prior to the owners’ marriage remained owned in common, subject to partition, and was not a marital asset
  • General Partner purchasing the interests of the limited partners has a fiduciary duty to inform the limited partners of all material facts bearing on the value of the property
  • Foreign divorce effecting the marital relationship did not impact their marital economic rights when the Defendant spouse was not personally served
    Refund of transfer tax paid by exempt Transferor on behalf of the transferee properly denied
  • Mansion tax applies to the purchase of a condominium unit by a husband and the purchase of the adjoining unit by his wife


Issued April 1, 2011

  • Dispute as to exact amount owed does not preclude the granting of summary judgment in an action to foreclose a common charge lien
  • Deed must be exhibited to  a tenant receiving a notice to quit after foreclosure
  • Motion for summary judgment in foreclosure denied and notice of pendency canceled by court due to possible “frivolous conduct” by Plaintiff’s law firm
  • Judge Whelan, Supreme Court, Suffolk County, finds that the Chief Administrative Judge of the Courts did not have the authority to require an Attorney’s Affirmation in mortgage foreclosures
  • Judge Mayer, Supreme Court, Suffolk County , finds that the Attorney’s Affirmation must accompany all applications made at any and all stages of foreclosure proceedings
  • Bankruptcy Court, Eastern District of New York, holds that naming MERS as “nominee” or “mortgagee of record” in mortgage does not, in itself, authorized MERS to assign a mortgage
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period April 1, 2011 – June 30, 2011
  • NYC Register Customer Service and Tax Map Customer Service to be available only in the Manhattan Business Center
  • NYS Department of Taxation and Finance issues an Advisory Opinion on the application of the State’s Real Estate Transfer Tax to the merger of two residential cooperative corporations
  • A bona fide purchaser does not have constructive notice of a  misindexed mortgage
  • Noise from cellular towers held to violate a restrictive covenant prohibiting an “offensive, dangerous or obnoxious” use of the restricted property
  • Court of Appeals holds that options to renew leases are not subject to the rule against perpetuities
  • Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys have been amended
  • Cooperative foreclosure sale stayed until the lender complied with the pre-disposition notice requirement of UCC Section 9-611(f)

Issued January 31, 2011

  • Cooperative Corporation approval to UCC sale of a unit held required
  • Deed conveying a life estate also describing the life tenant as a joint tenant created only a life estate
  • Escrow properly held until all charges for which funds were in escrow are resolved
  • Use of proceeds for husband and wife's sale of home to purchase a residence in the wife's name only held to be a fraudulent conveyance under New York's Debtor and Creditor Law as to a judgment creditor of the husband
  • Court mandates compliance with new attorney affirmation requirements for mortgage foreclosures
  • Court’s holding that loan fraudulently obtained could not be foreclosed overturned on appeal
  • Right of exclusive occupancy in a divorce judgment could not prevent partition of the residence after a reasonable duration
  • The granting of an option to purchase to a tenant is subject to New York State’s Transfer Tax
  • Instrument is deemed recorded from the time it is delivered to the recorder in recordable form
  • Rule against perpetuities does not apply when the closing date was not specified since the parties intended that the closing would occur within twenty-one years from the date on which the contract was executed
  • Mapping of a portion of an unopened street held void since the City of New York had no intention to open and build on street
  • Son had no standing to contest the partition of property owned by his deceased father and the father's former wife as tenants by the entirety with another person as tenants in common

Issued December 29, 2010

  • Mortgage made by a lender who is a natural person held to be subject to Banking Law Section 6-1
  • Lower court’s voiding of note and discharging of mortgage due to conduct of foreclosing mortgagee reversed on appeal
  • “Access to Justice in Lending Act” enacted in New York
  • Assignment of Rents held supplemental and not subject to mortgage recording tax
  • NYS issues Annual Statistical Report of 2009-2010 Tax Collections
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax  for the period January 1, 2011 – March 31, 2011
  • Block index recording fee increased in Nassau County
  • City of Peekskill imposes a Real Property Transfer Tax

Issued October 25, 2010 - Special Edition

  • Attorney Affirmation required in residential mortgage foreclosures in New York

Issued October 18, 2010

  • Condo Sponsor’s release of contract deposits would not cause it “irreparable harm”
  • A bona fide purchaser is not protected when the immediately prior deed was void
  • US State Department notice under the Foreign Missions Act affording real estate tax exemptions to foreign mission property used to house staff upheld
  • Land claims of the Oneida Indian Nation held barred by equitable principles
  • Rescission of contracts of sale under the Interstate Land Sales Full Disclosure Act upheld
  • Right to rescind a contract of sale can be brought within three years of its execution under the Interstate Land Sales Full Disclosure Act
  • Mortgage foreclosure dismissed due to the failure to provide proper evidentiary proof of compliance with the notice requirements of RPAPL Section 1304
  • Bona fide purchaser at foreclosure sale without knowledge that the defendant property owner was allegedly incompetent or incapacitated retains title
  • Assignment of mortgage by MERS to foreclosing plaintiff was insufficient to confer standing
  • Affirmative defenses in foreclosure that loan was substantively unconscionable and the result of unfair and deceptive practices sufficient to withstand a motion for summary judgment
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period October 1, 2010 – December 31, 2010
  • NYS Law Revision Commission reports to the Governor and the State Legislature on the Statutory Gifts Rider
  • Email may satisfy the Statute of Frauds
  • “Comfort Letters” prohibited by the New York State Insurance Department

Issued September 27, 2010 - Special Edition

  • Memorandum issued by the NYS Department of Taxation and Finance on the application of Sales Tax and Compensating Use Tax to title products

Issued August 23, 2010 - Special Edition 

  • Sales tax requirements effective September 1

Issued August 20, 2010 - Special Edition

  • New York Statutory Short Form Power of Attorney revised

Issued August 2, 2010

  • Amendments to adverse possession statutes to be applied prospectively
  • Electronic filing required for actions in the Supreme Court, New York County
  • Eminent domain for the development of a new campus for Columbia University upheld
  • Incumbrancer for valuable consideration protected under RPL Section 266
  • Third party purchaser may pursue claims for money damages when deed was forged
  • Validity of mechanic's lien to be tried on foreclosure of the lien, not on a motion to vacate
  • Foreclosing mortgagee not required to take the names of other bidders at first sale in case the winning bidder did not complete the sale
  • State transfer tax and mortgage tax ruling on Islamic Financing issued
  • Penalties to be imposed for the late filing of NYC Real Property Income and Expense Statements
  • NYC Implements "Recorded Document Program"
  • Receiver can be appointed to transfer a cooperative unit
  • To exercise a right of first refusal tenant, as required by the contract entered into with a third party purchaser, had to provided financing for the Owner-Seller to acquire a replacement property
  • New York State issues "Sales and Compensating Use Tax Treatment of Certain Information Services"
  • Under EPTL Section 7-1.18, assets must be actually transferred to a lifetime trust

Issued June 1, 2010

  • Indian Lands may not be the object of real estate tax foreclosures
  • Fannie Mae issues "Foreclosure Actions on the Name of MERS"
  • Mortgagee has no duty to maintain a multiple dwelling until its purchase at the foreclosure sale
  • Defendant in mortgage foreclosure awarded exemplary damages for the Plaintiff-lender's conduct
  • Plaintiff in a mortgage foreclosure must prove compliance with the notice requirement of RPAPL Section 1303
  • Non-judicial foreclosure is converted to a judicial foreclosure so as not to cause undue hardship to the mortgagor
  • Lender committed trespass by entering into mortgaged dwelling without notice
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax  for the period July 1, 2010 - September 30, 2010
  • NYS Department of Taxation and Finance issues Memorandum on application of the Special Additional Mortgage Recording Tax to mortgages made by a NYS chartered credit union
  • Assignee of a mortgage assigned after the filing of a notice of pendency by a prior owner is protected by the Recording Act
  • Lease held not to violate the Rule Against Perpetuities

Issued March 5, 2010

  • Certificate of authority required for a foreign LLC doing business in New York to foreclose
  • Articles of organization must be filed for an LLC to take title to real property under the “de facto” company doctrine
  • NYS Budget Bill may impose the mortgage recording tax on cooperative unit financing
  • NYS Department of Taxation and Finance publishes interest rates for State Transfer Tax and Mortgage Recording Tax for the period April 1, 2010 – June 30, 2010
  • Recording of an Assignment of Leases and Rents not mortgage taxable in Westchester County
  • NYS Department of Taxation and Finance publishes FAQs on application of the Additional (“Mansion”) Tax
  • Expired and renewed judgment held to have priority over a mortgage recorded when the judgment was effective
  • Creditors’ rights coverage no longer available from title insurers
  • TIRSA Rate Manual revised as to foreclosures where title is taken by the insured lender, its assignee or subsidiary, and as to deeds in lieu

Issued January 8, 2010

  • Changes in requirements to enforce mortgages and cooperative security interests

Issued December 28, 2009

  • Time-period amendments to the Federal Rules of Bankruptcy Procedure
  • Dissolving corporations doing business in NYC to obtain consent from NYC Finance
  • Cooling tower violating easement ordered removed, replaced or otherwise remedied
  • Eminent Domain cannot be used to benefit a private entity
  • Requirements for mortgage foreclosures enacted in New York
  • Mortgage ordered discharged due to lender’s conduct
  • Assignment must have been executed for the assignee to have standing to foreclose
  • Mortgage recording tax reduced in Dutchess County
  • NYS issues Annual Statistical Report of 2008-2009 Tax Collections
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the period January 1, 2010 – March 31, 2010
  • NYC Local Law enacted to maintain safety at inactive construction sites
  • Entity which had applied for an exemption under IRC Section 501 (c)(3) ruled exempt from the RPT
  • Executor cannot delegate his powers to the attorney for the Estate
  • Misindexed mortgage not enforceable against bona fide purchaser and his mortgagee
  • Mortgagee may be on inquiry notice of ownership rights of the occupant of the mortgaged property

Issued December 7, 2009

  • Westchester County Property Records Electronic Portal (“PREP”) System

Issued October 1, 2009

  • Down payment ordered returned when bank withdraw loan commitment on purchaser's loss of employment
  • Seller had no obligation to disclose water condition in home
  • Seller of cooperative apartment did not hold "unsold shares" since unit was purchased after corporation took title and Seller was not designated by the Sponsor as the holder of "unsold shares"
  • Lender did not make a prima facie showing that its loan was intended to be secured by a mortgage
  • Unidentified marital children of heir of property owner should have been noticed by publication in tax lien sale
  • Deed held to revoke contingent future estate granted by prior deed
  • Mechanic's lien amended nunc pro tunc to reflect the tax lots for Sponsor owned condominium units
  • Action must be brought against the personal representatives of a decedent
  • Kings County requirement that an amended order of reference and a supplementary judgment of foreclosure be obtained when a foreclosure sale is scheduled more than one year after entry of the foreclosure judgment is not affected by the defendant property owner's intervening bankruptcy
  • Authority to execute an assignment of mortgage on behalf of MERS must be recorded with the assignment
  • "Evidentiary proof" of compliance with the Subprime Lending Reform Act required to foreclose
  • Mortgage foreclosure on property in which space is leased by the United States dismissed for lack of subject matter jurisdiction under the "Quiet Title Act"(28 U.S.C. Section2409a)
  • Revised Form MT-15 ("Mortgage Recording Tax")
  • An application under the NYC Environmental Control Board "Penalty Relief Program" must be filed before December 21, 2009
  • Notice of Pendency held properly filed in an action under RPAPL Section 611 involving an exterior wall encroachment
  • "Mansion Tax" paid in error by Sellers recoverable from the Purchasers after closing
  • City of Peekskill authorized to impose a local transfer tax
  • Property Records Electronic Portal System ("PREP") is required for recordings in Westchester County as of January 1, 2010

Issued September 8, 2009

  • New Statutory Short Form Power of Attorney - FAQ

Issued September, 3 2009

  • New forms of power of attorney issued by NYS Department of Taxation and Finance

Issued September 1, 2009

  • Mortgage made to NYS Power Authority and private lenders, as co-mortgagees, is exempt from mortgage recording tax
  • Mortgage made to a local development corporation, assigned to a private lender which will fund the loan, is exempt from mortgage recording tax
  • City of Yonkers extends its local portion of the mortgage recording tax. Greene County enacts a local mortgage recording tax effective  October 1, 2009
  • New York State Department of Taxation and Finance publishes interest rates on the late payment  of State Transfer Tax and Mortgage Recording Tax for the period October 1, 2009-December 31, 2009
  • Revised TIRSA Mezzanine Financing Endorsement
  • City of Peekskill authorized to enact a local law imposing a local deed transfer tax
  • Revised Short Form Power of Attorney effective September 1

Issued July 8, 2009

  • Mortgagee can foreclose notwithstanding a claim of adverse possession
  • Condominium Board of Managers has no claim to surplus if a common charge lien is not filed
  • Purchase option held not binding for lack of an agreement on material terms
  • Sale of property between markets for 83 feet of lake frontage cannot be rescinded for mutual mistake although later survey shows 114.7 feet of lake frontage
  • Equitable subrogation applied when mortgagee had no actual knowledge of prior mortgage being paid off with its loan
  • Attorney did not disclose to his client that the view from the unit being purchased would be obstructedPower of Sale Foreclosure statute "sunsets"
  • Court refers foreclosure for investigation due to possible fraud
  • "Gift or Loan" clause of NYS Constitution held not violated by a purchase money mortgage taken back by municipality
  • NYC program requiring architects and engineers to upload applications for new buildings and major enlargements of buildings to the Department of Buildings' website to be effective July 13, 2009
  • NYC Register to require revise form of Affidavit in Lieu of Registration as of July 1, 2009
  • Assessments cannot be challenged in a NYC tax lien foreclosure unless administrative remedies were first pursued
  • HPD notice of pendency would not be canceled so long as violations were not cured even though a Consent Order was entered to remedy
  • Renewal option in a lease exercisable after expiration of the lease held to violate the rule against perpetuities

Issued June 10, 2009

  • Revised New York City Real Estate Transfer Tax Return

Issued May 27, 2009

  • NYC Department of Finance announces a revised procedure for submitting applications for new condominiums and for the related  issuance of tax lot numbers
  • NYS Court of Appeals holds that a renewal judgment is effective when granted and is not to be enforced as of the original expiration date of the lien of the judgment

Issued April 4, 2009

  • Lessees, debtors in Bankruptcy, were required to remove mechanics' liens filed post-petition and before the leases were rejected, or to indemnify the property owners
  • Placement of cell towers on the roof of a condominium building enjoined and the lease with the cell tower company held void
  • Unregulated leases expired before an offering plan for the conversion of the building to condominium ownership was accepted for filing are not entitled to Martin Act protection Condominium floor plans to be filed with the New York City Surveyor's office on 8 1/2 inch X 11 inch sized paper
  • Lis pendens in an action alleging that title was held in constructive trust canceled on filing of an undertaking for the maximum amount the plaintiff could recover at trial
  • Easement recited in a contract of sale as to be granted but which was not contained in the deed executed pursuant to the contract enforced against the adjoining property of the grantor
  • Fee increases for the RP-5271, the RP-5217NYC and NYC's Real Property Transfer Tax Return effective June 1
  • IRS announces an expedited process to obtain the subordination or the discharge of a federal tax lien
  • Purchaser at foreclosure to proceed to close notwithstanding damage to the property caused by the owner subsequent to the foreclosure sale
  • A purchase money mortgage made by a third-party lender enforced notwithstanding the claim that the former property owner was the victim of a "mortgage rescue" scam
  • Mortgage assignment executed after the commencement of a foreclosure, reciting that the assignment was effective retroactively, held not sufficient to establish the assignee's standing to foreclose
  • Assignment by MERS to the foreclosing lender, reciting that it was executed by an attorney on behalf of MERS pursuant to a corporate resolution, held not sufficient to establish standing
  • Assignee held to be the holder of a note and mortgage by reason of the endorsement to it of the note
  • Court orders a copy of a lost unrecorded mortgage to be recorded, but not recorded nunc pro tunc Mortgage to, and being submitted for recording by, an exempt entity is not subject to mortgage recording tax
  • New York State Department of Taxation and Finance publishes interest rates on the late payment  of State Transfer Tax and Mortgage Recording Tax for the period April 7, 2009 - June 30, 2009
  • Digital tax maps are available for New York City through ACRIS
  • NYC announces a program requiring architects and engineers to upload applications for new buildings and major enlargements of buildings to the Department of Buildings' website
  • Registration Statements to be filed in NYC for one-and-two family dwellings not occupied by the owner or his or her family member
  • Title held to revert to the NYC Economic Development Corporation notwithstanding that violations filed by NYC delayed completion of the building's rehabilitation as required
  • Revised forms IT-2663 and IT-2664 for 2009
  • A dissolved corporation in title as nominee and which is otherwise inactive is not subject to New York State franchise tax
  • A pending action for the partition of a joint tenancy does not survive the death of one of the joint tenants

Issued February 19, 2009 

  • Revised New York Statutory Short Form Power of Attorney and New Statutory Major Gifts Rider.

Issued December 23, 2008 

  • The New York City Department of Finance's web site advises that new real estate tax rates have been adopted for the period of January 1, 2009 - June 30, 2009.

Issued December 10, 2008 

  • Appellate Division, First Department, affirms holding that NYC Local Law 79 of 2005, providing a right of first refusal and first opportunity to purchase assisted rental housing struck, is preempted by state and federal law
  • NYS Court of Appeals upholds "attorney approval contingency clause" 
  • Claim for malpractice a legally cognizable cause of action when contract of sale required seller to deliver at closing "copies of all existing certificates of occupancy for the premises"
  • Appellate Division, First Department, affirms holding that corporate Seller is bound by acts of its Director/Corporate Secretary 
  • Defaulting bidder in a tax lien foreclosure loses down payment when sale results in a surplus over the foreclosure judgment
  • General Contractor held a Trustee of a Lien Law Trust
  • Exemption for "Special Additional" component of the mortgage recording tax extended to NYS chartered credit unions which result from the conversion of federal credit unions on and after January 1, 2009
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the period January 1, 2009 - March 31, 2009 
  • Transfer of real property to a Church organized under NYS's Religious Corporation Law ruled exempt from NYC's Real Property Transfer Tax
  • Transfer of two uncombined units ruled subject to NYC's Real Property Transfer Tax "residential rates" when the buyer's intent was to combined the units before the transfer from the Sponsor
  • Exchange of voting stock for non-voting stock as part of a corporate merger ruled not eligible for a "mere change" exemption from NYS Transfer Tax
  • Notice of pendency filed by a contract vendee is ineffective when the vendee did not record its contract to purchase or a memo of the  contract 
  • TIRSA New York Standard Endorsement (Loan), TIRSA Variable Rate Endorsements, and TIRSA Fannie Mae Balloon Mortgage Endorsement revised effective December 1, 2008
  • Joseph S. Petrillo named to the Board of Directors of First American Title Insurance Company of New York 
  • "Financial Strength", First American Title Insurance Company

Issued October 10, 2008 

  • Environmental Conservation Law amended to require notice to tenants of indoor air contamination
  • FIRPTA non-foreign affidavit may be furnished to a "Qualified Substitute" 
  • Order granting default judgment in mortgage foreclosure vacated as borrowers were negotiating a modification of the loan
  • Revised Form M-15 ("Mortgage Recording Tax Return") effective October 1, 2008 
  • NYS issues Annual Statistical Report of 2007-2008 Tax Collections
  • NYS issues "Changes in Procedures for Obtaining Guidance from the Tax Department"
  • Recording charges increase in numerous counties
  • TIRSA Standard Endorsements amended and a new TIRSA Co-insurance Endorsement is approved
  • Application forms issued for the "first-time homebuyer exemption from the Peconic Bay Region Transfer Tax applicable in the Towns of Southampton, East Hampton and Shelter Island. 

Issued August 15, 2008 

  • Adverse possession legislation enacted effective July 7, 2008
  • Encroachments did not meet requirements for adverse possession
  • Legislation for broker's affidavit of entitlement effective January 1, 2009
  • Common law fraud and breach of contract claims are not preempted by the Martin Act
  • Rights of an owner of property abutting a navigable waterway may not be impaired
  • Legislation governing the foreclosure of subprime home loans, low-cost home loans and non-traditional home loans enacted
  • Three day rescission period under the Truth-in-Lending Act may be extended only when required disclosures are not provided
  • NYC Register will not record a deed to the fee of air space without a prior tax lot subdivision
  • NYC Surveyor fees increased 
  • Notice of pendency can only be extended by a motion made prior to its expiration date
  • NYS Superintendent of Banks issues a letter captioned "Statutory Prohibitions Against 'Tying' Title Insurance to Mortgage Financing"
  • NYS Transfer Tax is due on the reconstitution of a Limited Profit Housing Company into a business corporation on the filing of an amendment to its certificate of incorporation
  • Peconic Bay Region (a part of Suffolk County) Transfer Tax is amended to allow for additional exemptions
  • Reduced transfer tax rates for REITS extended
  • Town of Northeast in Dutchess County is authorized to enact a Local Law imposing a transfer tax

Issued June 18, 2008

  • Transfer out of bankruptcy must be made pursuant to a confirmed plan to be exempt from stamp tax
  • Sufficient time to perform must be afforded when time is made of the essence
  • For a cooperative to impose a flip tax there must be adherence to formal corporate requirements
  • Money damages would adequately compensate plaintiff for an encroachment of the building on the adjoining premises
  • Borrower is responsible for payment obligations when the loan is not a "high cost" mortgage loan
  • When a loan to a homeowner in a minority area has an interest rate in excess of 9 percent, the Lender must establish the loan was not discriminatory
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the period July 1, 2008 - September 30, 2008
  • NYC Department of Finance posts Statements of Audit Procedure
  • NYC Register's new policy for the return of recorded documents to undergo further review
  • NYS Department of Taxation and Finance issues Publication 576, "Transfer or Acquisition of a Controlling Interest in an Entity with an Interest in Real Property"
  • NYS Department of Taxation and Finance issues an Advisory Opinion on Islamic Financing
  • Notary must administer an oath before acknowledging a signature
  • Deed made by homeowners to a predatory lender voided
  • UCC Financing Statements can be filed in Westchester County over the Internet

Issued April 23, 2008

  • Adverse possession requires a claim of right and an absence of permissive use
  • Her Counsel having accepted a replacement check, the Seller waived her right to cancel the contract of sale
  • Corporate Seller bound by acts of Director/Corporate Secretary
  • Judgment reinstated nunc pro tunc not prior to intervening, recorded mortgages
  • Four month filing period for a mechanic's lien applies to work done on two combined cooperative apartments
  • Leave of court to sue on note is not required when the action to foreclose the mortgage securing the note was dismissed
  • Tenants must be named party-defendants and be served to be evicted as the result of a mortgage foreclosure
  • Mortgagee has a duty to investigate whether the mortgagor committed a fraud against the prior property owner under a so-called "mortgage rescue scheme"
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the period April 1, 2008 - June 30, 2008
  • Mortgage made by a Local Development Corporation is exempt from mortgage recording tax
  • NYC Register announces a new policy for the return of recorded documents
  • Heirs of a partner do not become partners absent a provision in the partnership agreement
  • A contract of sale did not not have the protection of the Recording Act as signatures on the contract were not properly acknowledged
  • Process server should have ascertained the correct address for a judgment creditor from the records of the Court in which the judgment was entered
  • Tax lien sale not stayed to enable a closing to take place to enable paying off the lien
  • Successful bidder in a tax lien foreclosure held responsible to pay real estate taxes and also interest on the purchase price accruing between the date of the auction sale and the delivery of the deed
  • Westchester County Clerk announces its changed procedure for recording pursuant to a power of attorney

Issued February 25, 2008

  • The mere presence of a fence does not establish a "substantial inclosure" under RPAPL Section 522 in a claim of adverse possession
  • Husband's filing of a bankruptcy petition did not stay his obligation to may mortgage payments under a court order entered in a suit for divorce and spousal maintenance
  • The decision of the Board of Managers of a condominium to install a cell phone antenna and related equipment in the common elements is protected by the "business judgment rule"; a condominium unit owner does not have standing to sue individually for injury to the common elements
  • Contract obligation to delivery the premises "vacant and clean at closing" does not survive the delivery of title
  • A merged easement is not re-established by reference to the easement in a deed to the dominant estate
  • Taking upheld notwithstanding claim that the public uses advanced for the project were pretexts for a private taking
  • Real estate taxes were not properly assessed on part of consular property used as a restaurant for a consular purpose
  • Foreclosure complaint dismissed when satisfaction of the mortgage had been recorded
  • Violating New York's predatory lending statute may result in voiding of the mortgage, the return of all payments, and borrower's expense in obtaining the loan and attorneys' fees
  • NYC's Department of Housing Preservation and Development to identify "distressed buildings" for the "Alternative Enforcement Program"
  • Possible increase in fees to file Forms RP-5217, RP-5217NYC and, when a RP-5217NYC is not required, New York City's Real Property Transfer Tax Return
  • Absent negligence, there is no liability for interference with  access to private property during a public construction project

 

Issued December 20, 2007

  • Architect of building under construction is liable for damage to adjoining properties
  • State regulations amended to provide that withdrawal from the Mitchell-Lama housing program is not a "unique and peculiar circumstance" enabling a rent adjustment
  • Contract vendee held to be in breach notwithstanding NYC's demolition of the second story of the building on the property being conveyed pursuant to unsafe building proceedings
  • Ethics opinion issue on an attorney's participation in a closing with a seller's concession and a grossed-up sales price
  • Purchaser at a judicial sale expressly "subject to" liens does not have standing to contest the validity of those liens
  • State Supreme Court Judge, in Kings County, sets forth the procedures to be followed in a foreclosure before him when an auction sale is scheduled more than one year after entry of the judgment of foreclosure and sale
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the period January 1, 2008 - March 31, 2008
  • "HECM" reverse mortgages are exempt from the mortgage recording tax
  • ACRIS Version 4.0 implemented in NYC effective December 3, 2007
  • A notice of pendency is properly filed for an action alleging that real property is a partnership asset
  • An open space restriction on a final plat filed in the Office of a County clerk is enforceable against a subsequent purchaser
  • The Westchester County Clerk requires separate checks for each of mortgage recording tax, transfer tax and recording fees

Issued November 1, 2007

  • Exchange of emails agreeing to sell real property does not comply with the Statute of Frauds
  • Motion for Order of Reference in mortgage foreclosure denied for non-compliance with Home Equity Theft Protection Act
  • Second Circuit affirms holding of USDC for the SDNY that the Village of Mamaroneck violated the Religious Land Use and Institutionalized Person Act of 2000
  • Mortgagee lacks standing to foreclose if it did not hold the note and mortgage when the action was commenced
  • Dutchess County institutes a local mortgage recording tax effective November 1, 2007
  • Revised Form MT-15 effective November 1, 2007
  • Version 4.0 of NYC Department of Finance's ACRIS is effective December 3, 2007
  • NYC Department of Finance instituting a “Document Review Process for New Condominiums and Amendments“
  • NYC Department of Environmental Protection is implementing a “Payment Incentive Program“
  • New mailing address to submit the New York State Real Estate Transfer Tax
  • Title insurer's “duty to defend includes the duty to appeal where there are reasonable grounds to do so“
  • Transfer Tax to take effect in the Town of Fishkill
  • Developer can expand zoning lot in NYC without further consent of transferor under Zoning Lot and Development Agreement

Issued September 10, 2007

  • Land taken by a municipality by a tax deed is subject to a claim of adverse possession
  • A grantee's actual knowledge of an easement prior to the conveyance is not a defense in an action to enforce a deed warranty
  • Notice provision of the Home Equity Theft Protection Act limited to foreclosures of owner-occupied one-to-four family dwellings
  • Home inspection contract can limit liability to the amount of the fee paid, but an action may be brought for a deceptive practice under General Business Law, Section 349
  • Judgment renewed nunc pro tunc held to have priority over a mortgage recorded after the judgment had expired
  • Effective July 20, 2007 the Village of Mamaroneck requires a Discharge Compliance Certificate
  • Tax sale bidder not required to take title subject to a right of reverter
  • In hearing an action to foreclose a mechanic's lien not exceeding than $25,000, the NYC Civil Court has jurisdiction to hear a motion to discharge the lien for its not being timely filed
  • A judgment of foreclosure was vacated since the mortgage did not inform the Court about a forbearance agreement it entered into with the borrower and the amount due was not recalculated to reflect payments made under the agreement
  • Foreclosure sale vacated since the Satisfaction of a prior mortgage was a forgery
  • A mortgage recorded by a local development corporation formed under Section 1411 of the Not-for-Profit Corporation Law is exempt from mortgage recording tax
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the period October 1, 2007 - December 31, 2007
  • An Article 78 proceeding is not required to determine the enforceability of emergency repair liens filed by the City of New York
  • The deadline for filing NYC Real Property Income and Expense Statements has been extended to September 28, 2007
  • A cause of action for breach of contract brought because of alleged material defects was properly dismissed since the property was sold “as is“, but a claim of fraudulent concealment may proceed
  • In New York City, a not for profit corporation's a real estate tax exemption can commence on the date on which it took title
  • A restriction that a property would not be used as a bakery for 50 years is enforced
  • Court of Appeals holds that landlords must continue to accept Section 8 rent subsidies and may not opt out of the Section 8 rent subsidy program
  • The “Hudson Valley Community Preservation Act“, authorizing Towns and Cities within the Counties of Putnam and Westchester to establish Community Preservation Funds and imposed transfer taxes, is effective January 1, 2008

Issued August 10, 2007

  • New notice requirements for mortgage foreclosures on residential property effective August 1, 2007

Issued July 12, 2007

  • Ruling returning down-payment when the condominium's Board of Managers required the payment of two years of common charges in advance to waive its right of first refusal affirmed on appeal
  • Change in zoning between contract and closing did not impact marketability
  • Taking to benefit private parties overturned
  • Publication not made within the statutory period is not curable by an Order nunc pro tunc
  • Judgment creditor is not entitled to surplus monies when the judgment was docketed in a different county
  • Ruling that Court has jurisdiction to determine the validity of liens for unpaid real estate taxes against property owned by foreign missions affirmed on appeal
  • Requirement that tenant could not assign without landlord's consent not violated by transfer of ownership of corporate parent
  • Mechanic's liens on condominium units no longer owned by the Sponsor could be amended
  • MERS held to have standing to foreclose a mortgage
  • Plaintiffs in mortgage foreclosures did not have standing to foreclose as the notes and mortgages were assigned
  • Standing to foreclose held to be a waivable defense
  • Property re-auctioned as bidder presented an uncertified, “starter“ check
  • 2007-2008 rates for real estate taxes in NYC announced
  • Owner of adjoining property is liable for injury caused by a defective sidewalk
  • Rockland County will require pre-addressed, stamped envelopes to return recorded documents

Issued May 31, 2007

  • NYC Local Law 79 of 2005, provides a right of first refusal and first opportunity to purchase assisted rental housing struck down
  • Oneida Indian land claim dismissed on grounds of laches
  • Westchester County Clerk to accept mortgage consolidation agreements signed only by MERS as nominee
  • Foreclosure sale overturned because non-mortgagor tenant by the entirety was not named a party defendant or served
  • Transfer exempt from State Transfer Tax since there was no change in the benefits and burdens of ownership
  • Transfers constituting a financing exempt from State Transfer Tax
  • Lease of land in a shopping center on which a new building is to be constructed exempt from State Transfer Tax
  • Transfer under court order by a Religious Corporation not subject to attack for lack of due authorization
  • Proceeds from sale by tenants by the entirety are held as tenants in common
  • Transfer Tax in the Town of Red Hook effective August 1, 2007
  • Private Well-Water Testing Law in Westchester County effective November 19, 2007

Issued April 12, 2007

  • Appurtenance Clause in deed did not transfer Seller's rights to parking spaces on adjoining property
  • Overuse of an easement can be enjoined, but it is not grounds to terminate an easement by grant
  • Mortgage loan not in default when non-payment was due to a technical problem in the electronic payment program administered by or on behalf of the lender
  • Survivor of an unmarried couple who took title as tenants by the entirety held vested with full title
  • Mortgagee equitably subrogated to the lien priority of the mortgage satisfied by proceeds its advanced
  • Revocable license in a lease to adjoining vault space was not revocable until the lease terminated
  • Mechanic's liens filed against condominium units after recording of deeds from the Developer discharged
  • Mechanic's lien for work in a cooperative apartment on two floors had to be filed within four months of the date on which the last work was performed
  • Foreclosure sale upheld when temporary restraining order was not served on the bidders at the foreclosure sale
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the period April 1, 2007-June 30, 2007
  • Requirement in a mortgage, which allowed prepayment without penalty, that borrow reimburse lender's closing costs if the credit line was terminated within the first 36 months held to be a prepayment penalty and a deceptive business practice
  • Transfer of real property from a limited profit housing company formed under the Private Housing Finance Law to a cooperative corporation formed under the Business Corporation Law is not exempt from the State Transfer Tax
  • New certification requirements to enable obtaining a receipted Combined Real Estate Transfer Tax Returns (TP-584 and TP-584-REIT) when the State Transfer Taxes are being prepaid
  • Conveyance of real property to a subsidiary of the State's UDC, coupled with a leaseback and the repurchase by the lessee of fee title is a financing not subject to the State Transfer Tax
  • To establish priority over a notice of pendency, a deed is deemed recorded when delivered to the recording officer, even if the deed is recorded and indexed after the lis pendens is filed
  • Land use restrictions in deed from the City of New York bind successor owners
  • Appointment of a RPAPL Article 7-A Administrator is not an encumbrance on title and does not affect marketability
  • Return issued for Town of Warwick's Community Preservation Fund Real Estate Transfer Tax
  • Removal of debris from a tree onto the adjoining land where the tree had stood was a trespass
  • Declaration restricting the use of property based on the identity of the owner is not valid

Issued March 5, 2007

  • 2006 ALTA Policies approved in New York effective May 1

Issued January 24, 2007

  • Home Equity Theft Prevention Act effective February 1, 2007

Issued December 20, 2006

  • Limited Profit Housing Company formed under Mitchell-Lama held unable to dissolve due to a covenant in the deed to it from NYC requiring residential use for 50 years
  • Automatic stay lifted due to the Debtor's failure to pay more than $50,000 of post-petition mortgage payments over an eleven month period
  • Down-payment ordered returned to the contract vendee when the condominium's Board of Managers required the payment of two years of common charges in advance to waive its right of first refusal
  • Confession of judgment signed by a husband in favor of his mother when the husband was filing for divorce vacated to enable the sale of the marital residence
  • Disclosure of uncapped natural gas wells required in contracts of sale effective January 1, 2007
  • Contract down payment ordered returned to the purchaser who sought specific performance when the seller made repairs to fire-damaged property to prevent the building to be demolished
  • Monetary damages held sufficient to compensate an owner of a landlocked parcel claiming an easement by necessity as the plaintiff's parcel is not a buildable lot under NYC's Administrative Code
  • Shinnecock Indian Nation's lawsuit to recover property in Suffolk County dismissed
  • Lien Law amended to provide that an owner of land is not a necessary party to enforce a mechanics lien when the contractor or subcontractor executes a bond or undertaking
  • Assignee of a mortgage has a duty to search the public record to determine if there are unpaid real estate taxes
  • Recording officers are required to record and index mortgages, assignments of mortgages and discharges of mortgages naming MERS as the mortgagee or as a mortgagee's nominee
  • Form MT-15 (“Mortgage Recording Tax“) revised
  • Leasehold mortgages on the World Trade Center site are exempt from mortgage recording tax as the Port Authority as mortgage will be presenting the mortgages for recording
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the first quarter of 2007
  • As between two buyers contracting for the same property priority is given to the buyer whose deed or contract is first recorded, even if a list pendens is filed by the other buyer before recording of the deed or contract
  • Information on the payment status of Suffolk County real estate taxes will not be available on January 3, 4 and 5, 2007
  • Transfer tax payable by the Grantee to take effect in the Town of Warwick, Orange County, on April 1, 2007

Issued October 26, 2006

  • A condominium unit owner may bring an action with respect to the common elements of a condominium on behalf of two or more unit owners but a unit owner does not have standing to sue individually for damages to the common elements
  • A corporation dissolved for the non-payment of franchise taxes retains title to its real property
  • Installation of modular workstations is not an “improvement“ within the meaning of the Lien Law for which a mechanics lien may be filed
  • NYC's commercial transfer tax rates not applied to the transfer of multiple units between the same parties on the facts, but the commercial rates may apply
  • State Transfer Tax properly applied to the transfer of controlling interests in an entity owning the stock of Delaware corporations which owned a Delaware limited liability company owning a hotel in Manhattan
  • A mapped street running through a parcel may result in a taking if there is proof of the diminution of property's value
  • In selling a tax lien the government must investigate who is the holder of a mortgage which was made to a dissolved institutional mortgagee to allow service by publication
  • Sales by a partnership to purchasers related to a partner without disclosure of the relationship held to be void
  • The Tax Injunction Act does not preclude federal courts from determining whether notices of foreclosure satisfy due process

Issued September 5, 2006

  • Seller must produce marketable title to hold a purchaser in default
  • Court of Appeals affirms that District Court has jurisdiction to determine the validity of liens for unpaid real estate taxes against property owned by foreign missions
  • “Home Equity Theft Prevention Act“ enacted
  • To foreclose a mechanics lien against the fee owner for work done by a tenant the landlord must have consented to the improvement
  • Notwithstanding denied mortgage application was in excess of the acquisition loan the vendee was entitled to return of down-payment
  • MERS as nominee cannot assign a mortgage and a note
  • New York State Department of Taxation and Finance publishes interest rates on State Transfer Tax and Mortgage Recording Tax for the fourth quarter of 2006
  • NYC Real Property Income and Expense Statements may be filed electronically, and sales prices for cooperative units in NYC can be found on ACRIS
  • “Absentee Landlord“ surcharge in NYC reduced to zero percent of net real property taxes for fiscal years beginning on and after July 1, 2006
  • Documents in Bronx, Kings, New York and Queens County can be submitted for recording in the Register's office in any of those counties
  • A claim of unjust enrichment cannot be maintained for breach of a restrictive covenant
  • Proof of criminal intent is required to establish criminal usury
  • Wholesale exclusion of educational uses from commercial districts is unconstitutional

Issued July 5, 2006

  • First American announces UCC Policies for Cooperative Units
  • UCC filing issues for cooperative units in the NYC Register's Office
  • Court of Appeals holds that “an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim“
  • First American - New York renewed as an accredited provider of continuing legal education
  • Contract vendee can enforce oral representation of Seller-Trust's Settlor
  • Power to condemn properly can be delegated to private co-licensee of power plant
  • Bankruptcy of General Contractor does not extend subcontractor's mechanics lien
  • Mortgage not required to be assigned when property owners is refinancing
  • Judge of Supreme Court, Bronx County, issues guidelines for payment of referee's fees in mortgage foreclosures
  • State-chartered credit union formed under Article XI of the Banking Law is not an exempt organization for application of the portion of the mortgage recording tax known as the special additional tax
  • New York State Department of Taxation and Finance published interest rates on the late payment of real estate transfer taxes and mortgage recording taxes for the third quarter of calendar year 2006
  • NYC Department of Environmental Protection issues procedures to obtain water meter readings effective July 1
  • City of Peekskill, in Westchester County, requires an updated certificate of occupancy before closing
  • Prepayment penalty not enforced in a mortgage foreclosure as it was not expressly applicable in a foreclosure
  • Res Judicata a defense to a claim of “active concealment“ when prior action under Property Condition Disclosure Act was dismissed
  • Purchaser not bound by restrictions on the use of property set forth in documents filed in the Town's offices but not recorded in the real estate records
  • Private Well Testing Law in Rockland County
  • US Supreme Court holds that “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property“
  • Residential transfer tax rate applied to Class 1 real property in NYC notwithstanding commercial use of 10% of the building
  • Mansion Tax applied to transfer of vacant land from developer when grantee obtained construction financing for a residence on the land
  • Reduced transfer tax rates for REITS extended

Issued June 14, 2006

  • Title insurance rate reduction approved for First American Title Insurance Company of New York effective June 15, 2006

Issued June 1, 2006

  • Publication requirements effective June 1, 2006 for domestic and foreign LLPs, LLCs, limited liability partnerships, and professional limited liability revised

Issued May 18, 2006

  • In Kings County a Referee's Deed in the foreclosure of a mortgages cannot be delivered to the assignee of the successful bidder

Issued May 1, 2006

  • NYC Local Law 79 of 2005 provides a right of first refusal and first opportunity to purchase assisted rental housing
  • Seller canceling contract for inability to delivered vacant possession held in breach as contract provided for Seller to a pay per diem until vacant possession was delivered
  • Lenders must comply by July 1,2006 with Revised Article 9 procedures for continuing the perfection of an existing security interest on a cooperative units
  • USDC for the SDNY holds that the Village of Mamaroneck violated the Religious Land Use and Institutionalized Person Act of 2000
  • Damages awarded against tenant for its holdover of commercial space
  • Federal tax liens did not render title unmarketable since under contract liens which could be discharged by the payment of money were not objections to title
  • New York State Department of Taxation and Finance publishes interest rates on taxes for the second quarter of 2006
  • Holder of mechanics liens expiring prior to foreclosure sale is not entitled to surplus money
  • Notice of pendency may not be extended ex parte but on motion with notice to the opposing party
  • Dental practice did not violate a restrictive covenant prohibiting a noxious, dangerous or offensive business at the property

Issued February 27, 2006

  • New publication requirements effective June 1, 2006 for domestic and foreign LLPs, LLCs, limited liability partnerships, and professional limited liability

Issued January 30, 2006

  • ACRIS update
  • Building encroaching on easement ordered removed
  • Mortgagee on constructive notice may not claim rights by equitable subrogation
  • Discharge Compliance Certificate required in the unincorporated part of the Town of Mamaroneck
  • Agreement to “Pay [subcontractors] When Paid“ is contrary to public policy in New York
  • Suffolk County Clerk is required to record a mortgage executed to MERS as nominee
  • Interest rates for the late payment of mortgage recording tax and for transfer tax for first calendar quarter announced
  • NYC Economic Development Corporation forms the NYC Capital Resource Corporation to offer direct loans through its Loan Enhanced Assistance Program
  • Document Preparation fee charged by lender for “fill in the blank' type documents is not the unlawful practice of law
  • Gramm-Leach-Bliley Act privacy regulations governing financial institutions do not apply to attorneys
  • Court upholds imposition of ICIP deferred charges against certain NYC residential condominium unit owners
  • TIRSA Rate Manual as to Refinance and Subordinate Mortgages revised
  • TIRSA Rate Manual as to Reverse Mortgages revised

Issued December 2, 2005

  • EPA publishes final rule establishing standards to qualify for protection from liability under CERCLA
  • Roof of Garage Unit can be a general common element which all Unit Owners must maintain
  • Unit Owners not liable for injuries due to a defective common element
  • Expenses to maintain property incurred by parent of deceased tenant by the entirety are not compensible
  • Federal District Court holds that real estate taxes cannot be foreclosed against lands of Indian Tribes without federal authority
  • NYS law restricts removal of survey markers
  • Conveyance by father to son construed as the retention of a life estate with a vested remainder
  • Cooperative unit owners do not have standing to challenge a mechanics lien filed against the cooperative corporation for work done on their unit
  • Tender in a mortgage foreclosure must also include costs of the action
  • NYS issues Annual Statistical Report of 2004-2005 Tax Collections
  • NYC will not aggregate a mortgage with a prior, recorded mortgage which is to be satisfied on submission of an affidavit in the form annexed to this Bulletin
  • NYC can sell property that is not inalienable to a LDC without public bidding
  • Change in real estate tax rates in NYC for fiscal year 2005-2006 applied to second half taxes
  • NYS Department of Taxation and Finance issues an Advisory Opinion on application of the State Transfer Tax to a lease of space in a shopping center
  • Beams and construction materials can extend into a party wall so long as they do not extend into the adjoining owners property or damage is caused to the adjoining building
  • County reasonably believed that owner was merely avoiding receipt of tax sale notice when notices by certified mail were “unclaimed“, there being no response to notices by first class mail

Issued October 6, 2005

  • Law requires a mortgagee to pay a penalty when a discharge is not timely recorded
  • NYC Register will not, except in certain instances, record a deed to a part of tax lot without a prior subdivision
  • Law provides that a RPAPL Section 1331 notice of pendency can be filed to complete a mortgage foreclosure when the CPLR lis pendens has expired or become ineffective

Issued September 12, 2005

  • NYC RPT filing fee for non-deed transfers

Issued September 2, 2005

  • Reduced transfer tax rate applicable to a conveyances to a REIT other than a conveyance made in connection with the initial formation of the REIT expired September 1, 2005

Issued August 2, 2005

  • Passive us of the wall of an adjoining building as a shield against the elements did not result in a prescriptive easement
  • Whether owner of a cooperative unit holds unsold shares is determined by interpreting the coop corporation's certificate of incorporation and by-laws and its form of proprietary lease
  • Transfer of title to entities comprised of the same parties and of controlling interests in the title owning entity held not a transfer of title
  • Court has jurisdiction to determine the validity of liens for unpaid real estate taxes against property owned by foreign missions
  • Declaration for an HOA is effective on approval by the NYS Department of Law, not on its recording
  • Shinnecocks, Onondagas and Cayuga Indian Land Claims
  • Authority to foreclose by the exercise of a power of sale under RPAPL Article 9 extended until July 1, 2009
  • Application of $1 condemnation clause in a deed from NYC enforced
  • NYC Department of Finance issues “Finance Policy Relating to the Revocation of Real Property Tax Exemptions“
  • NYC Department of Finance issues “Finance Policy Relating to Real Property Tax Interest and Billing Legislation“
  • Ruling that combined condominium units were subject to residential RPT rate
  • Foreclosure of mortgage made by owner after he conveyed the property upheld since mortgage was first recorded and the lender had no notice of the conveyance
  • Lease provision that building “will be run as a first-class office building“ did not restrict the use of the building
  • Implied covenant of good faith and fair dealing applies to a last right of refusal to purchase
  • Deed of subdivision lot with “all right, title and interest“ in and to the adjoining street gives the owner the right to use the road for parking
  • City of Yonkers' authority to impose its local mortgage tax extended to August 31, 2007

Issued June 24, 2005

  • City of Yonkers Transfer Tax increased effective July 1, 2005

Issued June 16, 2005

  • USDC remanded case to Bankruptcy Court to determine if Debtor's could equitably retain the difference between the defaulting bidder's deposit and the final purchase price at the auction sale
  • Condominium By-Laws can be amended to restrict sale of small studio units to only owners of other units within the building
  • Cooperative flip tax imposed after execution of contract for the sale of a unit ordered returned
  • Hidden -in-ground swimming pool does not impair the marketability of title
  • RPAPL Section 1301(1) (“Separate Action for Mortgage Debt“) applies to a judgment rendered in another country
  • Contract vendee not served in a mortgage foreclosure, whose contract was recorded prior to commencement of the action, could redeem the mortgage and receive a deed
  • State Tax Commission Memorandum on June 1, 2005 mortgage recording tax increase posted
  • State Tax Commission's Annual Statistical Report for FY 2003 and FY 2004 collections posted
  • NYC Department of Taxation and Finance posts a Memorandum on the requirement to pay real estate taxes by EFT
  • Chief Administrative Law Judge of the Tax Appeals Tribunal rules that residential transfer tax rates apply to “bulk sales“ of condominium units in NYC
  • Richmond County Clerk requires an electronically generated cover page
  • Tax lien sale vacated as inflated legal fees were included in foreclosure judgment
  • Court dismissed an action to enforce a criminally usurious note on its own motion notwithstanding the defendant's default in appearing

Issued April 18, 2005

  • Contract vendees denied permission to intervene in hearing on petition to see spouses' property in husband's bankruptcy
  • Parking spaces at condominium could be sold to non-residents
  • Condemnation awards for industrial property cold not be determined under theory of residential use under a redevelopment plan
  • Cooperative Board did not unconditionally approve application to purchase when it required a maintenance charge escrow for eighteen months
  • Reversal on appeal of ruling that malpractice claim against counsel for depositing down payment in a small bank that failed withstands motion to dismiss
  • Hart-Scott-Rodino notification requirements expanded to transactions involving the acquisition of a controlling interest in an unincorporated entity when reporting thresholds are met
  • Federal savings associations are not required to pay interest on mortgage escrow accounts
  • Foreclosure sale voided on finding that lender led defendant to reasonably believe the sale would be postponed pending modification of mortgage loan
  • Class Action claims that certain charges on repayment of mortgage loans violated TILA, RESPA and FDCPA
  • Mortgage recording tax increase effective June 1
  • NYC to enforce aggregation for mortgage recording tax in ACRIS
  • Supplemental school tax bills being issued for the Bellmore School District (in Nassau County) for 2004-2005 tax year
  • Ruling upheld on appeal that although transfer of diplomatic mission is exempt from New York State's Transfer Tax under 1961 Vienna Convention on Diplomatic Relations, mission can not obtain a refund when it assumed obligation to pay the tax under contract

Issued March 30, 2005

  • Budget Bill under review in the New York State Legislature would effective on enactment increase the mortgage recording tax in counties within the MTA District

Issued February 8, 2005

  • Injunction to enjoin construction on adjoining property denied; no proof was submitted that plaintiff's building could collapse
  • Contract of sale executed by a later formed LLC is not enforceable
  • Adverse possession cannot be established when fence was erected with permission
  • Justice in Civil Court, Staten Island, states in dicta that purchase money lender may be required to ensure a certificate of occupancy is obtained
  • Tenant in common by reason of a residuary devise can be liable to pay for for use and occupancy
  • Federal criminal forfeiture statute allows for the foreclosure of partial interests in real property
  • Order issued authorizing the sale of decedent's residence and the distribution of sale proceeds to the life tenant to enable him to pay for his residence in an assisted care facility
  • Appellant seeking to prohibit the sale of property by an Estate was required to post a bond as security for all loses if the appeal is not successful
  • An action can be brought to enforce a note notwithstanding that the mortgage foreclosure is dismissed
  • Effective date of changes in the mortgage recording tax relating to spreader agreements and additional mortgages, and to the refinancing or wraparound mortgages, extended from November 18, 2004 to January 17, 2005
  • New telephone number for Technical Services Division, Office of Tax Policy Analysis, New York State Department of Taxation and Finance
  • RESPA class action dismissed as it was not brought in any “district in which the property is located, or where the violation is alleged to have occurred“.
  • Enforcement of a purchase money note and the foreclosure of the mortgage is subject to the defense of criminal usury

Issued December 27, 2004

  • Auction sale prior to confirmation of plan of reorganization held exempt from transfer tax
  • Statute of Frauds required counsel to have authority from client to agree to change in terms of contract of sale
  • RPL Section 281 does not require a credit line mortgage to be recorded to have priority over a judgment
  • Claim denial of application by religious day school for amendment of special zoning permit violated Religious Land Use and Institutionalized Persons Act of 2000
  • PHL Section 35 does not prevent withdrawal of property from Mitchell-Lama program for publicly subsidized housing after twenty years
  • Change in real estate tax rates in NYC for fiscal year 2004-2005 applied to second half taxes
  • NYC Tax Appeals Tribunal rules bulk sale of condominium units is subject to residential transfer tax rates
  • Co-Op RPTT Filing Fee Refunds form posted
  • Revised Forms TP-584 and MT-15 posted and 2005 non-resident estimated income tax forms to be posted
  • Notice of pendency properly filed in action to foreclose a vendee's lien
  • Covenant as to use not enforced as parties imposing restriction did not own benefited property
  • Mortgage terms required purchase of terrorism insurance
  • NYC zoning amendments for part of the South Street Seaport Historic District held valid

Issued November 24, 2004

  • “2004 Amendments to the Tax on Mortgages“ posted on November 34 by the State Tax Commission

Issued October 28, 2004

  • Local Law requiring installation of carbon monoxide detectors effective November 1
  • Contract down payments are receivership property when restraining order was issued before running of period to cure contract defaults
  • Forbearance agreement not an appearance in a mortgage foreclosure
  • Bankruptcy filed by spouse of property owner does not stay mortgage foreclosure
  • Mortgage recording tax increases in Columbia, Delaware, Lewis and Sullivan counties. Genesee County increase also anticipated
  • Determination of Administrative Law Judge that lower, residential transfer tax rates apply to “bulk sales“ of condominium units in NYC
  • NYC rules on continuing lien deduction held properly applied to transfers prior to issuance of regulations
  • Transfer tax properly computed on amount in contract assignment where assignor was a shareholder of the property owning entity
  • Forms issued for Nonresident Estimated Income Tax on cooperative units
  • Fourth Department holds that an RPAPL notice of pendency can be filed in a mortgage foreclosure if the CPLR lis pendens expired or was canceled
  • Court can only stop the sale of a tax lien if taxes and interest were paid in full
  • Restriction against business use not enforced where such use was minimal and “not readily discernible“
  • Title agent subrogated to purchaser-insured's rights as contract provided for the post-closing adjustment of taxes

Issued September 8, 2004

  • Break-up fee held payable only on first bankruptcy auction sale
  • Chapter 344 of the Laws of 2004 requires names of entities to be distinguishable
  • Real Property Law Section 240-c (“Joint Tenancy Severance“) not applied retroactively
  • Value of remainder interest in residence an available resource for payment of medical care
  • Mortgage replacing an erroneously satisfied mortgage had bifurcated priority
  • Law prohibiting foreclosure of a mortgage to secure payment of legal fees in matrimonial actions unconstitutional when applied to mortgages executed prior to its effective date
  • State tax warrant has priority to surplus monies over interest of a tenant by the entirety
  • Nassau County Clerk not receipting for payment of State Transfer Tax until instrument is accepted for recording
  • Changes in payment dates for County and School Taxes in New Rochelle
  • NYC can require payment of real estate taxes for certain properties by electronic funds transfer
  • Lower commercial RPT rate applies in NYC when separate deeds, pursuant to separate contracts of sale, are executed to the same grantee by tenants-in-common
  • Partition action cannot be maintained when property is owned by the entireties
  • Limiting ownership to “qualified persons“ as determined by adjoining Hospital was an unreasonable restraint on alienation
  • Email signature is sufficient to satisfy the Statute of Frauds
  • Changes in payment dates for City Tax in Yonkers

Issued August 30, 2004

  • Increased fees for State's Equalization and Assessment Form
  • Non-resident estimated income tax to be required to be paid on the transfer of cooperative units
  • Mortgage Recording Tax to be charged on a “spreader agreement or additional mortgage“
  • Mortgage Recording Tax to be charged on wrap-around mortgage refinances

Issued July 9, 2004

  • ACRIS E-Tax Forms required for pre-July 5 transfers submitted after July 5
  • Carbon monoxide detecting devices to be required in New York City
  • Forfeiture of 25% down payments under contracts for purchase of pre-construction luxury condominiums upheld
  • Encroachments on street do not render title unmarketable since the building is subject to Landmark's Protection Laws and the risk of their removal is negligible
  • Application of NYC $1.00 condemnation clause upheld notwithstanding that the public purpose if different
  • Court cannot in a condemnation order grant condemnee an easement, sua sponte
  • Homeowners' Association can file and enforce a common charge lien under the Condominium Act
  • Mechanics lien timely received by a County Clerk but filed after expiration of the statutory period for filing a lien enforced as no intervening lienor would be adversely affected
  • Mechanics lien for work on condominium conversion could not be enforced against Board of Managers
  • First American Title Insurance Company of New York acquires Modern Abstract Corporation
  • Supreme Court, New York County, issues decision in MERS litigation
  • Judgment controls over Terms of Sale and purchasers cannot be required to pay real estate taxes in a mortgage foreclosure without receiving a credit
  • Firm sale contract (not merely a petition to sell at an auction for a minimum price) is required to approve sale of real property by a not-for-profit corporation
  • Although a sale is not approved, a contract provision for payment of purchaser's out-of-pocket expenses can be reviewed under NPCL Section 511
  • Below-market sale to an entity owned by the son of a general partners approved as limited partners consented to a sale “on such terms as may be determined by the general partners“ even if they may have an interest therein
  • Pending Legislation: Mortgage recording tax on spreaders and mortgages as additional collateral security
  • Pending Legislation: Increased fees for Equalization and Assessment Forms RP-5217 and RP-5217NYC
  • Pending Legislation: Enabling successive notices of pendency to be filed in a mortgage foreclosure
  • Restriction allowing construction of one single family dwelling “not more than one and one-half stories in height“ is ambiguous and unenforceable

Issued June 28, 2004

  • ACRIS ALERT - To be required to cooperative unit and controlling interest transfers as of September 7, 2004

Issued June 8, 2004

  • ACRIS E-Tax Forms to be required as of July 3

Issued May 14, 2004

  • Article: ACRIS E-Tax Forms are Changing Closings in New York City
  • Break-up fee of 5.2% of purchase price held reasonable in an arms-length real estate transaction
  • Easement of necessity for access from fire ladder extending into adjoining parcel
  • Mortgagee commencing foreclosure collateral estopped from litigating validity of mortgage when mortgagor was determined in a criminal proceeding to have fraudulently obtained title
  • Implementation of “Absentee Landlord“ real estate tax surcharge in the City of New York delayed until July 1, 2006
  • Filing fees for NYC Real Property Transfer Tax Return not to be collected and to be refunded for cooperative unit transfers since January 1, 2003
  • Specific performance cannot be ordered against a not-for-profit corporation which had not obtained leave of court to sell all or substantially all of its assets as required under New York's Not-For-Profit Corporation Law
  • Conveyance “subject to“ reimposes a restrictive covenant
  • Suffolk County to appropriate excess fees paid to the County Clerk for fees and taxes up to $30.00
  • A notice of pendency under the Real Property Actions and Proceedings Law can be filed in a tax lien foreclosure when the lis pendens filed under the Civil Practice Law and Rules had lapsed
  • Payment of tax arrears must strictly comply with instructions to be timely credited
  • Stay pending outcome on appeal of an order to deliver possession of real property requires posting of a surety bond not merely an “undertaking“ not to commit waste and pay for use and occupancy

Issued March 15, 2004

  • Update: ACRIS Tutorial is posted to the WEB

Issued March 10, 2004

  • Failure to produce marketable title barred Seller from retaining down payment
  • Execution of contract to sell all the assets of a corporation in the business of property management was not in the ordinary course of business and absent shareholder consent was void
  • Malpractice claim against counsel for depositing down payment in a small bank that failed withstands motion to dismiss
  • Lender which satisfied its mortgage in error was equitably estopped from foreclosure after borrower secured a mortgage loan with another lender
  • Court of Appeals upholds decision that the transfer of monies due developer to its construction lender, which was the assignee of the developer's interest in a turnkey contract, is a diversion of trust assets under the Lien Law
  • Deed intended as security is a mortgage only and judgment could be enforced against the mortgagor's interest
  • Mortgage Recording Tax increased in Westchester County, including the City of Yonkers
  • Agreement for the demolition of the “Highline“ on the west side of Manhattan does not require ULURP
  • 100% surcharge on water charges until a water meter is installed is upheld
  • Notice of pendency properly filed in an action seeking removal of a fence encroachment
  • Court of Appeals holds that telecommunication facilities are subject to private restrictive covenants
  • A judgment debtor can credit bid in a Sheriff's execution sale
  • Court of Appeals holds that actual notice to a landowner is not required before the State Department of Environmental Conservation designates property as a wetland

Issued January 14, 2004

  • Update: Completion of transfer forms in NYC in ACRIS anticipated in April 2004
  • Rights by adverse possession does not accrue while land is “open space“ under GML Section 247
  • Zoning does not apply to activities of commercial telephone companies on towers owned by the State. Reverses ruling of lower court
  • Granting commercial unit the right to use common elements “reasonably necessary“ to its use does not provide for an easement
  • Fraud in inducement cannot be claimed only when the contract's merger clause states that the buyer is not relying on any representations as to the issue in question
  • Charging lock-in fee and application fee must be preceded by RESPA disclosures
  • Mortgage recording tax increased in Schuyler County
  • RPAPL Section 2001 does not apply to affirmative easements granting a right of use to a dominant estate
  • Proposed Rules for the “absentee“ landlord real estate tax surcharge
  • Fiduciary cannot delegate the entire responsibility to administer an estate, even to a co-fiduciary
  • Property owner required to comply with Transportation Law Section 18 before leasing railroad property with an option to purchase
  • Mere assertion that notice of tax foreclosure was not received does not rebut the presumption of notice arising on recording of In Rem deed
  • Interest of tenants not served in a tax lien foreclosure can be cut off in a strict foreclosure, and tenants are required to pay for use and occupancy

Issued December 22, 2003

  • Update: Completion of transfer forms in NYC in ACRIS anticipated as of March 2004
  • Interest rates set for 1st Quarter of 2004 for State’s Transfer Tax and Mortgage Recording Tax

Issued December 16, 2003

  • Update: Procedures in 2004 for payment of non-resident estimated personal income tax (Payment to recording office)

Issued November 10, 2003

  • Update: Procedures for payment of non-resident estimated personal income tax (Payment to recording office)

Issued October 28, 2003

  • Air conditioners protruding into air space of adjoining parcel for more than 10 years did not alone establish adverse possession
  • Entity withholding requirement for the payment of estimated personal and corporate income tax by partners or shareholders that are C corporations or non-resident individuals may be waived
  • Estimated personal income tax due from non-residents recording a deed to be payable to the recording office
  • New “FIRPTA“ regulations as to TINs and “disregarded entities“
  • Court orders mechanics lien, complaint and notice of pendency to foreclose amended; there was a mis-description of the name of the property owner
  • Publication requirements for LLCs upheld in reversal of lower court decision
  • Foreclosure sale held invalid as terms of sale deviated from the judgment of foreclosure
  • Mortgage Recording Tax increase in Allegany and Chautauqua Counties
  • NYC surcharge on real estate taxes paid on “absentee landlords“ owning Class I property
  • Appellate Division, First Department, “recalled and vacated“ its prior decision, holding that a mortgage foreclosure may proceed when the lis pendens has expired
  • Decision that recorded mortgage with an error in the name of the mortgagor is not constructive notice to a later mortgagee affirmed on appeal
  • Right of first refusal held to be an unreasonable restraint on alienation
  • Owner redeeming from a tax sale was required to obtain a stay of the sale

Issued September 10, 2003

  • Update: Procedures for completion of forms for payment of non-resident estimated personal income tax (Referees in foreclosures)

Issued September 8, 2003

  • Update: Procedures for completion of forms for payment of non-resident estimated personal income tax (Referees in foreclosures and other court appointed persons/Municipalities in New York State)

Issued September 5, 2003

  • United States Court of Appeals for the Third Circuit holds that a transfer of real property is exempt only if made after confirmation of a Chapter XI plan
  • In Rem Tax Foreclosures barred by automatic stay in bankruptcy of residuary devisee of owner of property
  • Delivery and recording of a tax sale deed is not subject to the automatic stay when petition for relief was filed after the tax sale auction but before delivery of the deed
  • City of Yonkers extends its rate of mortgage recording tax
  • State Attorney General proposes regulations to require sponsors to disclose whether they intend to sell all units and, if not, to specify the number of units they intend not to sell
  • Trial to determine if forfeiture of down-payment in excess of 10% of the purchase price is an unenforceable penalty
  • Election of remedies does not apply when debt is secured by real property outside of New York State
  • New York City's Lead Paint regulations struck down by State Court of Appeals
  • New York State Department of Taxation and Finance publishes interest rates on taxes for the fourth quarter of 2003
  • Changes in payment dates for real estate taxes on property in New Rochelle
  • New York State Department of Taxation and Finance publishes forms for payment of estimated personal and corporate income tax by partners or shareholders that are C corporations or non-resident individuals
  • Claim for restoration of lateral support by adjoining property supports filing of a notice of pendency
  • Holders of tenant in common interest as tenants by the entireties have standing to bring a partition action
  • Lien of expired judgment extended over the interest of an intervening judgment creditor with notice
  • Although transfer of diplomatic mission is exempt from New York State's Transfer Tax under 1961 Vienna Convention on Diplomatic Relations, mission can not obtain a refund when it assumed obligation to pay the tax under contract
  • Municipality may not require imposition of a restrictive covenant as a condition to rezoning in an area pre-empted by New York State law
  • Rockland County mortgage recording tax authorized

Issued August 5, 2003

  • Estimated income tax on the gain from a deed transfer must be paid to New York State prior to recording a deed delivered on and after September 1

Issued July 2, 2003

  • NYC Register to require forms completed in ACRIS
  • Cannot claim adverse possession against property held in public trust
  • Seventh Circuit holds that Bankruptcy Code Section 363 “trumps“ Section 365
  • HUD publishes Final Rule on property “flipping“
  • Interest rates on refunds and late payments for 3rd quarter published by NYS Department of Taxation and Finance
  • NYC real estate tax rates for 1st half 2003-2004
  • NYS Budget Bill requires payment of estimated tax by a non-resident taxpayer to record a transfer of real property
  • NYS Budget Bill requires entities to pay estimated income tax on behalf of partners, members and shareholders not resident in the state
  • NYS Budget Bill increases fee to file Equalization and Assessment forms
  • Notice of pendency to foreclose a mechanics lien extended nunc pro tunc
  • Condition on development in records of Planning Board not constructive notice
  • Telecommunications Act of 1996 does not preempt enforcement of privately imposed restrictive covenants
  • First refusal not triggered by transfer to an LLC in which transferor held a 60% interest and retained management control
  • Oral extension of option violated statute of frauds
  • Former owner having conveyed lack standing to contest tax sale
  • Undertaking to satisfy mortgage is not limited to amount in escrow
  • National Bank Act preempts state usury laws for a nationally chartered bank

Issued May 7, 2003

  • New York State regulation on carbon monoxide detectors effective March 6, 2003
  • Escrowed funds subject to County's claim for Medicaid reimbursement
  • Life tenant obtains order authorizing sale of property over objection of executrix and other remaindermen
  • Cannot be a merger of estates due to a mortgagee's outstanding interest
  • Lender's satisfaction fee is not prohibited but lender may not charge a facsimile fee and a quote fee
  • Contract vendee not a necessary party to a mortgage foreclosure
  • Contracts of sale contain an implied covenant of good faith and fair dealing
  • FinCEN publishes an “Advance notice of proposed rulemaking“ on “Anti-Money Laundering Program Requirements for Persons Involved in Real Estate Closings and Settlements“
  • Easement of light and air cannot be obtained by adverse possession
  • Purchaser charged with constructive notice of a mortgage which a proper inquiry of the record would have disclosed
  • Recording Act does not protect one with knowledge of an unrecorded interest
  • Restrictive covenants are strictly construed
  • Limitations period for a misrepresentation under a Pooling Agreement commences to run when the representations are made, not when loss to the certificate holders is realized
  • Tax district not required to investigate why notices of a tax sale were returned as undeliverable
  • Title insurer not liable when funds were misappropriated by title agent also representing the insured warehouse lender
  • NYC issues a Transfer Tax ruling on Reverse Exchanges

Issued March 10, 2003

  • Mortgage not avoidable in Chapter 13 Bankruptcy unless there is no equity above the amount of prior liens
  • Connecticut raises local portion of its transfer tax
  • Seller must make a good faith effort to deliver title before relying on contract provision for refund of down payment
  • Assignee not substituted for mortgagee that commenced foreclosure after assignment and action dismissed
  • Cannot be a bona fide purchaser under a forged deed
  • Action converted to one for money damages against County Clerk for misindexing mortgage assignment
  • Default judgment not vacated by “Decision and Order”
  • State Department of Taxation and Finance publication on “New York Tax Status of LLCs and LLPs”
  • Managing Member of LLC a fiduciary to Member selling it its interest until Buy-Out closed
  • Notice of mechanics lien can be served to owner at the address on the tax bill even if it is not located at that address
  • Interest rates set for 2nd Quarter on State’s Transfer Tax and Mortgage Recording Tax
  • Holder of usurious mortgage unable to recover amount paid to redeem property from a tax sale
  • New York City Civil Court has jurisdiction to discharge an ancient mortgage not exceeding $25,000
  • New York City Council considering establishing a Registry of restrictive covenants in Building Department
  • New York City Council considering revision of Lead Paint law
  • Second notice of pendency not properly filed when lis pendens was canceled for failure to serve the summons and complaint within thirty days of filing
  • Restrictive covenant enforceable by other filed map lots in subdivision
  • Easement cannot be created to benefit land not owned by grantor of the easement
  • Part performance of an oral agreement to convert a building and sell a tenant its space as a condominium unit took the agreement out of the statute of frauds
  • Purported oral modification of a purchase option in a stipulation settling litigation violated statute of frauds
  • “Public record” from which names and addresses of persons are obtained to notice a tax sale does not include records of applications in Department of Planning and Community Development
  • UCC Fees increased effective April 1, 2003 in New York’s Department of State

Issued January 27, 2003

  • Proposed Rule for installation of Carbon Monoxide Detectors published
  • Seller was required to comply with contract provision notwithstanding the events of September 11
  • Default notice provision in first mortgage effective where not modified by the terms of later consolidation agreement
  • Mortgage to UDC entity exempt from recording tax even if loan is funded by an otherwise non-exempt assignee of the mortgage
  • Rights under party wall agreement limited to an easement for support
  • No remedy other than the $500 credit to the buyer under the Property Condition Disclosure Act, and the obligation to provided a credit does not survive closing
  • FASB issues Interpretation No. 46 on the “Consolidation of Variable Interest Entities“
  • Bankruptcy Code Section 108(a) governs the impact of bankruptcy on statute of limitations to foreclose a mortgage
  • Right to redeem from a tax sale is protected by the automatic stay in a bankruptcy
  • Court determination of lien priority takes title insurance for a mortgage into account
  • Fee to assign a mortgage does not violate the Truth in Lending Act or Regulation
  • Z
  • NYC Register will no longer accept termination statement for financing statements filed under the former Uniform Commercial Code against collateral other than fixtures and cooperative interests

Issued December 27, 2002

  • Adverse possession can run against NYC as to property acquired in a tax foreclosure after three years from final judgment
  • NYS Department of State advises that requirement for Carbon Monoxide Detectors will become effective only after final adoption of a regulation by the State Fire Prevention and Building Code Council
  • Seller unable to obtain a certificate of occupancy as agreed could cancel the contract
  • Easement not terminated due to benefited property being vacated due to a fire
  • Landlord enjoined from canceling lease to League of Arab States for its refusal to pay for additional security expense
  • Revised procedure to obtain the discharge by bonding of mechanics liens to be effective January 1
  • Successful bidder at a mortgage foreclosure required to pay transfer taxes
  • Increase in New York City real property tax rates
  • ACRIS and Form RP-5217NYC to be in effect in NYC
  • Law enacted to regulate the making and foreclosure of Sub-Prime loans

Issued November 27, 2002

  • Changes to NYC's procedure for recording - ACRIS and RP5217NYC

Issued November 15, 2002

  • Change in form for acknowledgments and proof of execution by a subscribing witness out of state effective January 1, 2003.
  • Debtor's occupancy rights as a non-purchasing tenant under a conversion could be sold by the trustee in bankruptcy
  • Carbon Monoxide Detectors required to be installed on sale of a one or two family dwelling, condominium and cooperative unit
  • Liquidated damages enforced on contract to sell a cooperative unit
  • Due process not afforded foreclosing mortgagee when City of New York demolished building without notice
  • Easement by prescription over space leased held established in favor of landlord
  • State Franchise Tax not due from entity holding title as a nominee
  • Court cannot extend statutory period for redemption in foreclosure
  • Junior lienor cannot reach surplus money after six years from default
  • Deed held in escrow for delivery of transfer tax forms did not toll period for claiming a deficiency judgment
  • Mortgage to secure payment of legal fees in matrimonial action cannot be foreclosed
  • Mortgage can be re-foreclosed to cut-off the rights of proprietary lessees and the lessees are liable for use and occupancy
  • New York City's ACRIS recording system to take effect on January 2, 2003
  • Statement of Audit Procedure on New York City's Transfer Tax issued for transfers from a nominee on completion of a syndication
  • Mortgage foreclosures when the notice of pendency is not extended
  • “Talkline-The Stoler Report“ returns for a second season on WSNR 620 AM
  • Mortgage assignee constitutionally entitled to receive notice of a tax sale
  • Tax Sale providing for notice by publication only held unconstitutional
  • Allocation of consideration for the state transfer tax on assignment of a lease and other assets
  • New York's Department of State begins using a 15-digit file number for financing statements

Issued September 18, 2002

  • City of New Rochelle can regulate placement of cellular towers
  • Construction Contracts Act effective January 14, 2003
  • “Subject to restrictions of record“ encompasses a paper street
  • “Business Judgment Rule“ precludes inquiry of cooperative board in terminating a proprietary lease for objectionable conduct
  • Cooperative Board lacks standing for action against sponsor for failure to dispose of remaining shares within a reasonable time
  • Proceeds of refinancing can be reached by a creditor of one of the tenants by an entirety
  • Vacating of mechanics lien for work done without consent of property owner upheld on appeal
  • Deficiency judgment can not be had against guarantees when foreclosing mortgage assignee did not receive an assignment of the notes and guarantees
  • Service of a writ of assistance by a foreclosure sale purchaser requires that the deed be “exhibited“ to the occupant
  • Interest rate on refunds and underpayments of mortgage recording tax and deed transfer tax for the fourth quarter published
  • Computation of the interest rate on underpayments of mortgage recording tax and deed transfer tax to be revised effective April 1, 2003
  • Advisory Opinion on “Cost-Plus Sale financing
  • Equitable mortgage imposed when signature and acknowledgment pages missing
  • New Jersey Private Well Testing Act effective September 14, 2002
  • Deed made pursuant to Bankruptcy Court order not exempt when the plan of reorganization had not been drafted
  • State Board of Real Property Services Form RP-5217 to be required in New York City effective January 1, 2003
  • Uniform Nonjudicial Foreclosure Act approved by the National Conference of Commissioners on Uniform State Laws
  • Restrictive Covenant against business use did not prohibit a business use of a passive office nature
  • Owners of land within a residential community could enforce a restrictive covenant imposed as part of a plan intended to benefit of land within the development
  • Whether an easement was intended to be insured by a title policy could not be determined without resort to extrinsic evidence

Issued July 17, 2002

  • “Clear and convincing“ evidence required to overcome presumption of due execution of acknowledged deed
  • Easement foreclosed by mortgages on burdened parcel
  • Cause of action alleging Sponsor's failure to dispose of shares in a non-eviction conversion to cooperative ownership upheld
  • Widow enjoined from disposing of real property owned with her late husband since she would forfeit right of survivorship if convicted for his murder
  • Claim of Seneca Nation against State of New York dismissed
  • Lower court decision holding payment to mortgagee prior to subcontractors was a diversion of trust funds affirmed
  • Mechanic's lien continued by filing of a cross-claim in action brought by other lienor whose claim was dismissed
  • Foreclosure by Federal Government is not subject to state statute of limitations on actions to enforce money judgments or laches
  • Mortgage recording tax applied only to that portion of a mortgage relating to a tax exempt purpose
  • Mortgages executed by Battery Park City Authority are exempt from mortgage recording tax as BPCA is to record
  • Quarterly interest rates on overpayment and underpayment of Mortgage Tax and New York State Real Estate Transfer Tax published
  • New York City real estate tax rates for the 1st half/1st and 2nd quarters of 2002-2003 announced
  • Certificate of occupancy revoked for a building in New York City for not having made the required repairs prior to issuance
  • Second notice of pendency in a specific performance action cannot be filed when the first lis pendens was canceled for failure to serve and file proof of service within 30 days of filing of the notice
  • “Mareva“ injunction upheld for New York practice by the Appellate Division, First Department
  • Statewide increase in recording and filing fees
  • Strict foreclosure can be brought against a tenant in possession
  • Holder of easement is not a necessary party to an action to foreclose a mortgage on the burdened estate when the easement rights were not effected
  • Request for an injunction to prevent mortgagee from using lockbox funds to purchase terrorism insurance denied
  • New York State and New York City transfer tax rates applicable to REITS extended to September 1, 2005

Issued May 28, 2002

  • Mere possession without claim of right does not give title by adverse possession
  • Easement of light and air cannot be created by implication
  • Deeds from common grantor “together with a right of way over“ a private road created a valid easement to a private beach and not merely a license
  • Federal tax lien attaches to interest of a spouse in property held as tenants by the entirety
  • First American's EAGLE 9 ™ UCC Insurance Policy for Buyers approved by the New York State Insurance Department
  • Decision striking down New York City's lead poisoning law reversed
  • Only a public improvement lien can be filed against City owned property
  • Owner must consent to work on its property for a mechanics lien to be properly filed
  • Mortgagee entitled to rely on erroneously recorded satisfaction of prior mortgage
  • Purchaser of tax lien on property in New York City entitled to interest even when tax lien was canceled due to errors in the City's posting of payments
  • New York State Bar Association sues Federal Trade Commission to stop enforcement of the Gramm-Leach-Bliley Act as it applies to attorneys
  • Mortgagee authorized to draw from lockbox to purchaser terrorism insurance
  • Transfer of a controlling interest in a limited partnership owning real property to a GRAT determined not exempt from New York State Transfer Tax
  • Treasury Department to issue regulations by October 24, 2002 on application of the anti-money laundering provisions of the USA Patriot Act of 2001 to “persons involved (in) real estate closings and settlements“

Issued April 12, 2002

  • Condominium and its insurance carrier are responsible for an injury taking place within the tree-well of a sidewalk
  • “Time of the essence“ can be declared once the contract closing date has passed
  • Laws amended as to maintenance of an encroachment onto a public street
  • Joint tenancy married after taking title held to be a tenancy in common on divorce
  • Mechanics lien “retroactively validated“ on reinstatement of corporate lienor
  • Assignee of mortgage had priority over holder of prior mortgage whose satisfaction was erroneously filed
  • Interest rates for Mortgage Recording Tax and Real Estate Transfer Tax announced for the second quarter of 2002
  • New York City's “ULURP“ procedure applies to agreement to demolish the railroad “Highline“ in Manhattan
  • Expired notice of pendency cannot be refiled
  • A right of reentry cannot be assigned at common law
  • Rule against perpetuities does not apply to a profit a prendre
  • Revised TIRSA Leasehold Endorsements
  • “Talkline - The Stoler Report“
  • Tax Sales - Cases regarding notice meeting due process

Issued February 19, 2002

  • Notice of pendency to foreclose a mortgage seller was to discharge not grounds for seller to cancel contract
  • “Flip“ tax imposed on sale of cooperative units of deceased shareholders was earmarked for a specific sale and invalidated
  • Condemnor may put property to an alternative public use on discontinuance of original public purpose
  • Denial by municipality of riparian rights to access canal held compensible
  • Property improved with a single family dwelling under Lien Law Section 17 means property improved with between one and four single family dwellings
  • Court granted motion to stay foreclosure sale and required assignment to a third party lender on payment of the mortgage debt
  • Purchaser from grantee of a person found not to have had the capacity to convey held bound by a notice of pendency filed prior to the recording of the re-conveyance
  • Form of Disclosure Statement for New York's Property Condition Disclosure Act
  • Payments made by Receiver appointed in prior, dismissed foreclosure did not extend the statute of limitations to enforce the mortgage
  • Foreclosure of a mortgage made to secure a guaranty time barred since the limitations period to enforce the underlying debt had expired
  • Action to declare the unauthorized execution and recording of a partial release of mortgage was subject to the six year statute of limitations applicable to mortgage foreclosures
  • “Talkline-The Stoler Report“
  • New York State Tax Department of Taxation and Finance Advisory Opinion holds that a lease will be subject to the state's transfer tax when the lessee's rights take effect
  • Default judgment obtained in a Canadian court enforceable notwithstanding that the interest rate for the loan in question would be usurious under New York law

Issued January 4, 2002

  • Adverse possession can be established by mutual mistake
  • Stated consideration of “one and no more dollars“ in deed from wife to husband put husband's mortgagee on inquiry notice of wife's solvency
  • Prospectus for cooperative conversion showed only typical apartments and purchaser could not rely on the unit dimensions shown
  • Riparian owner may dredge public underwater lands to preserve reasonable access to navigable water
  • Agreement for payment of a fee for negotiating a mortgage payoff is enforceable and does not violate licensing requirements
  • Publication requirements of the Limited Liability Company Law held a violation of due process, equal protection and of the right to access the courts
  • Mechanics lien filed against former, single tax lot after unit sales and new tax lots were created for individual units for work done for the Sponsor is improper
  • Lease with an option to purchase held not an equitable mortgage
  • New York City Water Board authorized to establish no less than a four year period to challenge water and sewer bills
  • Tax Law Judge and Presiding Officer Determinations of the state's Division of Tax Appeals and Decisions of the state's Tax Appeals Tribunal are available on the internet
  • Sale with two-thirds consent under the Not-for-Profit Corporation Law sufficient even if compliance with By-Law requirement of three-fourths consent was in question
  • Enabling legislation enacted to provide a partial real estate tax exemption for first time homebuyers of newly constructed homes
  • Recorded mortgage with an error in the name of the mortgagor is not constructive notice to a later mortgagee
  • Option to purchase binding on “heirs and assigns“ violated rule against perpetuities
  • Investigation must be made to support allegations of non-military service under the federal Soldiers' and Sailors' Relief Act of 1940 and Section 309 of New York's Military Law

Issued November 28, 2001

  • Definition of “qualified leasehold condominium' amended to include property of the Queens West Development Corporation.
  • CLE deadlines extended for attorneys impacted by September 11
  • Cause of action upheld for alleged rejection of an application to purchase a cooperative unit because children may be residing in the unit
  • Lien for unpaid maintenance charges enforced on foreclosure by unit lender
  • “Appurtenance“ clause in a deed continues the benefit of an easement of right of way
  • Informal Opinion of state's Attorney General that “E-Sign“ probably does not preempt New York's “Electronics Signatures and Records Act“
  • State of New York liable to Cayuga Indian Nation for the fair rental value of its former homeland, including prejudgment interest on the award
  • Acceptance of rent held not consent to the assignment of a lease
  • Filing of mechanics lien in New York for work done in 2000 by a New Jersey corporation dissolved in 1990 discharged for not being filed to wind up its affairs
  • New York State Department of Taxation and Finance publishes interest rates on taxes for the first quarter of 2002
  • Researcher access to New York City property records limited by post September 11 procedures
  • New York City fixes real property tax rates for fiscal year 2002
  • Expired notice of pendency cannot be extended nunc pro tunc
  • New York State's “Property Condition Disclosure Act“ effective March 1, 2002
  • Right of first refusal not expressly benefiting “successors and assigns“ held personal to its holder and not to run with the land
  • Recent articles published by First American

Issued October 3, 2001

  • Notice of appeal of a Bankruptcy Court order confirming a lease assignment must be filed within 10 days of entry
  • Mortgage held unsecured in Chapter 13 where the debtor has no equity in the property
  • Condemnation claim can be maintained by purchaser with knowledge of restrictions on development
  • Board President not authorized to consent to construction of a balcony extending from a condominium unit
  • Sponsor required to sell unsold units within a reasonable time
  • Mortgagee (and its assignee) may be accountable if it had knowledge of builder/seller's fraudulent conduct
  • New York City cannot enforce a housing enforcement lien without adhering to its notice procedures
  • Lease extending beyond the term of a partnership is not within the ordinary course of a partnership's business
  • Real estate tax exemption granted to sellers not continued when they reserved a right of occupancy instead of a life estate
  • Advisory Opinion of the New York State Department of Taxation and Finance on a Synthetic Lease
  • Real estate taxes held not to reattach when former owner purchased property back from county after a tax sale
  • A tenant-in-common cannot extend a space lease without the consent of the co-tenants
  • Executive Order issued freezing the assets of listed terrorist organizations

Issued August 8, 2001

  • Unauthorized post-petition transfer upheld since net proceeds were turned over to Trustee
  • Trustee charged with duty of inquiry notice of an unrecorded mortgage
  • Property reconveyed in action for a constructive trust subject to a mortgage of which plaintiff had notice
  • Same-sex domestic partner can claim property interest is subject to a constructive trust
  • Interest accrues on NYC Environmental Control judgments
  • Voluntary administration of a small estate for a mortgage debt
  • Domestic partner held to be a licensee subject to eviction
  • Mansion Tax not applicable to a cooperative unit used as a medical office
  • Foreclosure by power of sale authorized to July 1, 2005
  • Holder of a participation interest not a necessary party to a foreclosure
  • Foreclosure upheld notwithstanding lack of notice absent prejudice to defendant
  • Mortgage tax not due on a mortgage to either of the UDC/ESDC or the RIOC
  • Mortgage tax not due on a Housing Development Fund Mortgage when severed, assumed and/or modified
  • Mortgage tax not due when proceeds are used to pay debt owed wrap-around mortgagees
  • Nassau County charging fee to verify sewer connection
  • Transfer of subsidized housing to a REIT without consent of partners violates New York's Partnership Law
  • “Business Operating Transactions“ under a power of attorney does not authorize the sale of real property
  • No State Transfer Tax on the transfer of condominium units from an LLC to its individual members
  • NYC Local Law 36 changes as to charges for Rent Stabilization Fees
  • Right of Rescission exercisable within three years if no notice of the right is given by the lender
  • NYC Local Law 36 changes as to Tax Lien Sales
  • Marital agreement providing for a conveyance must be a judicial decree of separation to be enforced

Issued July 2, 2001

  • Revised Article 9 enacted in New York effective July 1, 2001

Issued June 21, 2001

  • New York Department of State and the New York City Register will accept Revised Article 9 forms

Issued June 13, 2001

  • New York Department of State will not accept current forms of financing statements as of July 1 on enactment of Revised Article 9

Issued May 29, 2001

  • Commercial condominium unit owner authorized to file for a building permit to expand floor space within its unit
  • Contract deposit retained as liquidated damages for failure to make a diligent effort to obtain a mortgage commitment
  • Severance of joint tenancy resulted in a tenancy in common but interest of husband and wife (who held their entirities interest as joint tenants) remained a tenancy by the entirety
  • NYC lead paint abatement provisions apply to a building erected prior to 1960 and later converted to a multiple dwelling
  • Naming in a mechanics lien an agent of the owner as owner is a jurisdictional defect not subject to amendment
  • Assignee of a mechanics lien must provide under Lien Law Section 38 an itemized statement of the labor and materials furnished
  • MERS mortgages not accepted for recording in Suffolk County. State's Attorney General issues an opinion on MERS
  • Letter to plaintiff's counsel should have been deemed an appearance in mortgage foreclosure
  • Monetary sanctions imposed for raising on appeal of the holding in a mortgage foreclosure defenses “rife with speculation and innuendo“
  • Vendee under a contract entered into after a judgment of foreclosure and sale has a common law right to redeem prior to the sale
  • Bona fide purchasers bound by a notice of pendency filed prior to recording of their deed
  • Interest and penalties on back real estate taxes can be computed only from the date on which the assessment of the property as exempt was corrected
  • Enforcement of a judgment for specific performance not acted on for ten years denied for laches

Issued May 15, 2001

  • Title Insurance for UCC Article 9 in New York State
  • New/Revised Title Insurance Endorsements: Environmental Protection Lien endorsements, Market Value Rider for the TIRSA Owner's Extended Protection (EAGLE) Policy, Mezzanine Financing endorsement, NYC Development Rights endorsement, and Waiver of Arbitration endorsement.

Issued April 9, 2001

  • Acknowledgement's presumption of due execution to be overcome only by clear and convincing evidence
  • Board of Managers authorized to grant a revocable license to enclose a portion of a hallway for the use of two condominium units
  • Statute of limitations for an action claiming a constructive trust
  • Deed referencing subdivision map includes the benefit of easements over paper streets Option to sublessee of cooperative unit once exercised does not survive rejection of sublessee's application to purchase
  • Interest on note limited due to mortgagee's delay in obtaining judgment of foreclosure and sale
  • Failure to enter judgment of foreclosure and sale prior to sale a curable defect since there was no prejudice resulting
  • New York City to collect Environmental Control Board judgments through the office of the City Collector
  • New York City to collect Rent Stabilization fees through the office of the City Collector
  • Notices of a new tax lien sale to be issued for property in New York City
  • Notice of pendency properly filed in an action seeking specific performance of provision in a joint venture agreement requiring the transfer of real property
  • State Legislative approval is required before New York City can construct an underground water treatment plant on parkland
  • Unlimited right to purchase violates the rule against perpetuities

Issued February 26, 2001

  • “Squatters“ unable to claim adverse possession
  • New York City's Consumer Protection Law held not applicable to the marketing and sale of homes
  • Owner of land burdened by easement can improve the land so long as the right of passage is not impaired
  • No easement by implication over a paper street when deed out of the map maker had only a metes and bounds description
  • Foreclosure sale vacated due to ambiguity as to whether the sale was subject to real estate taxes
  • On a deed by a joint tenant title becomes held as tenants in common
  • Mortgage made to a Housing Development Fund Company is exempt from mortgage recording tax
  • Mortgagee bound by a provision forgiving the debt on death of the seller - mortgagee and estate is required to execute a discharge
  • Amendments to Rent Stabilization Code for New York City, New York City Rent and Eviction Regulations, and, as to rent stabilized apartments outside of New York City, the Emergency Tenant Protection Act and the State Rent and Eviction Regulations
  • Appellate Division modifies ruling on zoning amendments in New York City for the Theatre Subdistrict
  • Presumption that mailed notice of a tax foreclosure to the address of the property owner on the deed was received
  • New title policy endorsements in New York
  • Article on Transfer Tax in New York - Continuing Lien Deduction

Issued February 5, 2001

  • New residential form of title insurance policy issued in New York

Issued January 2, 2001

  • New York City Lead Paint Law struck down
  • Mechanic's lien can be extended for only two successive years
  • Mechanic's lien can be filed when work is in progress
  • Mechanic's lien cannot be enforced for work done for sublessee at property publicly owned
  • Payments to construction mortgagee prior to subcontractors a diversion of funds
  • Lien Law affidavit's net sum for the improvement can include amounts to reimburse others who completed work prior to the construction loan
  • Purchaser entitled to rely on an erroneously recorded mortgage satisfaction even thought there was filed a lis pendens to foreclose
  • Motion for summary judgment in mortgage foreclosure need not recite the amount being sought
  • Credit line mortgages under Tax Law Section 253-b must be executed by the borrower not a separate guarantor
  • Mount Vernon transfer tax to be payable by the grantor
  • New York City “Conservation Program for Multiple Family Residential Buildings“
  • Property Conditions Disclosure Legislation vetoed
  • No constructive notice of recording against a Land Map Block and Lot when index was changed to a tax block and lot system
  • FCC rule allows satellite antennas in areas where the viewer has exclusive use

Issued October 18, 2000

  • Informal Opinion of the New York State Department of Law on forms of acknowledgment
  • Purchase money mortgagee has rights prior to a condominium association to unit rental payments
  • Liquidated damage provision upheld as being reasonable in light of “anticipated“ damages
  • Credit enacted for the Erie County Transfer Tax applies on the resale of residential premises on formerly vacant land
  • A mechanics lien may not be filed for general oversight of a construction project
  • Mechanics lien action dismissed for failure to plead that the materials were provided at the requested or with the consent of the property owner and lessee
  • A mechanics lien may not be filed in New York City by an unlicensed home improvement contractor which has done work for a unit owner
  • Limitations period for a bar claim action against a mortgagee brought by a tenant in common held not stayed by a bankruptcy filing against his co-tenant
  • New York State Banking Board issues regulations “Restrictions and Limitations on High Cost Home Loans“
  • Utilities held required to pay “interference costs“ to protect their installations within permanent easements obtained from private owners
  • IRS issues Revenue Procedure 2000-37 on “Reverse Exchanges“

Issued August 28, 2000

  • “Fence Affidavit“ does not divest title obtained by adverse possession
  • Right to obtain leases under Rent Stabilization extinguished by a bankruptcy sale “free and clear“
  • Unauthorized post - petition sale of the Debtor's residence upheld since there was no damage to the bankruptcy estate
  • Constructive trust imposed when father loaned daughter funds to satisfy a mortgage on the promise to later execute to him a mortgage or make him a co-owner
  • New York City Consumer Protection Law held applicable to real estate transactions affecting the public at large
  • Owner of land burdened by an easement not responsible for personal injury sustained in the easement area
  • A prescriptive easement on land used by the public generally requires assertion of a rights hostile to the owner of the land
  • No mortgage tax credit is allowed when a second credit line mortgage is used to pay off a prior credit line mortgage
  • Mortgage made to the New York State Urban Development Corporation, or its subsidiary entity, is tax exempt it if presents the mortgage for recording
  • New York City HPD lien for repair expenses is enforceable against a purchaser if aware of the expenditure
  • Purchaser held to have the obligation to inquire and determine if a credit balance for water charges is accurate
  • Presumption that notice of the foreclosure of tax liens was sent held established by the City Treasurer's affidavits of mailing
  • Municipalities can now sell tax liens to the State of New York Municipal Bond Bank Agency
  • No taxable consideration was received when the taxpayer's property was forfeited to the United States

Issued July 6, 2000

  • Due acknowledgment does not impact the validity of the transfer of title
  • Board of Managers can grant unit owners a revocable license to enclose a portion of an adjoining hallway
  • Court of Appeals affirms that a cooperative corporation may not indemnify directors for bad faith acts violating civil rights laws
  • Nassau County Local Law provides for a penalty on real estate taxes in arrears
  • Innocent Owner defense upheld against the New York City Water Board
  • Department of Environment Protection may enter into installment agreements for the payment of water charges in arrears
  • Any change in New York City real property tax rates once determined will be accounted for in second half billing on January 1, 2001
  • Leasehold option when exercised for the Roosevelt Hotel in Manhattan held on conveyance not subject to an existing fee mortgage
  • Mortgagee held subject to the life estate of a person in possession
  • Period to exercise a right of first refusal not tolled by request for additional property information or, absent a stay, by an action to extend the acceptance period
  • Court of Appeals affirms upholdng of a mortgage to secure legal fees executed prior to entry of a divorce judgment

Issued May 17, 2000

  • Civil Asset Forfeiture Act of 2000
  • Subcontractor's mechanics lien invalid for failure to identify the general contractor
  • Writ of assistance can be employed to evict tenants after a mortgage foreclosure
  • Participant in a mortgage loan held to waive rights to foreclose its junior interest
  • Credit line mortgages: Application of Tax Law Section 253-b and position on mortgages securing guarantees a credit lines
  • Division of Tax Appeals upholds mortgage tax exemption on wrap mortgage refinance of underlying mortgages
  • No prejudgment right of attachment to secure repayment of a debt under New York law
  • Utility wires and pipes do not constitute taxable real property
  • Mortgage has priority over a money judgment first docketed
  • Suffolk County Local Law to require well-water testing prior to conveyance of a residential dwelling
  • Decisions on restoration of a mortgage cut off on a tax lien foreclosure when property is repurchased by the prior owner
  • Surcharge on bills for un-metered water usage to commence July 1, 2000

Issued March 3, 2000

  • Reasonable rental recoverable in lieu of common charges in the foreclosure of a condominium unit
  • President of a corporation in the business of buying and selling real property has apparent authority
  • Estate of a mortgagor is liable for a deficiency after foreclosure. Property, and surviving spouse in title, are primarily responsible
  • Lead based paint disclosure requirements held applicable to target housing as of October 28, 1995
  • New York City Local Law 38 of 1999 - “Lead Poisoning Prevention and Control“
  • Prepayment penalty can be demanded by a mortgagee absent a right to prepay
  • Advisory Opinion of New York State Department of Taxation and Finance on the mortgage recording tax consequences of “defeasance“ in the context of a securitized mortgage loan
  • Filed notice of pendency binds subsequently obtained interests but does not affect interests acquired after expiration of the notice
  • Notice of pendency cannot be extended nunc pro tunc

Issued January 12, 2000

  • Foreclosure sale after bankruptcy case closed is upheld although foreclosure was commenced while stay was in effect
  • Debtor has an absolute right to dismiss a voluntary Chapter 13
  • Yonkers Transfer Tax reduced effective January 3, 2000
  • Declaratory Ruling on Credit Line Mortgages - Extension of “Draw“ period
  • SRO Tenants not entitled to condemnation awards
  • Tenant in common is a necessary party to the foreclosure of the interest of a co-tenant
  • Federal tax liens held to be enforceable against disclaimed property
  • Limitations on a judgment creditor's right to surplus monies
  • Wife took subject to mortgage not dealt with in matrimonial action and husband's payments held to be in lieu of maintenance
  • Mortgage assignments in the secondary market held subject to New York's Recording Act
  • Fax fee and recording charge on mortgage payoff held actionable

Issued December 14, 1999

  • Interests of commercial tenants can be cut off by a strict foreclosure Nassau County Transfer Tax to be repealed effective for transfers on and after December 25, 1999
  • Emergency repair charges and sewer connection charges in New York City
  • New Access, Contract Vendee and Option endorsements in New York
  • New York Court of Appeals WEB site

Issued November 8, 1999

  • Changes in New York's Limited Liability Company and Partnership Laws
  • New York Business Corporation Law amended - Procedure for a domestic business corporation to merge with or consolidate into a domestic not-for-profit corporation
  • Warren County increases its mortgage tax rate
  • Rules for the Transfer Tax issued by the City of New York on the application of the mere change of identity exemption to the transfer of controlling economic interests

Issued October 12, 1999

  • Adverse possession may be maintained against the City of New York as to tax foreclosed property
  • Application of Civil Practice Laws and Rules Section 306-b to time barred actions dismissed for the failure to file proof of service
  • General waiver of defenses by a guarantor held to prevent discharge of guarantee obligations on the principal debtor's release
  • Mortgage foreclosed as an equitable mortgage notwithstanding there being an erroneous property description in the deed to the mortgagor
  • Nassau County Clerk's requirements for the county transfer tax
  • New York City Real Estate Taxes - Change in rates
  • New York City Transfer Tax regulations for application of the continuing lien exclusion from consideration
  • Reduced transfer tax rates for REITS extended
  • New York City Theatre Subdistrict development rights transfers under Section 81-74, Article VIII of the Zoning Resolution enjoined
  • Surcharge on bills for non-metered water use is to imposed in New York City commencing July 1, 2000
  • Mortgage recording tax - City of Yonkers
  • FDIC “Institution Directory“ WEB site
  • New York City Zoning Resolution WEB site

Issued August 30, 1999

  • New York State Department of Taxation and Finance Advisory Opinion on Commercial Credit Line Mortgages securing less than $3,000,000

Issued August 11, 1999

  • Nassau County Transfer Tax effective August 15, 1999

Issued August 6, 1999

  • On September 1 the new uniform acknowledgment form must be used for acknowledgments taken in New York State
  • Mechanic's knowledge of a material misstatement in a Section 22 affidavit is not required for the building loan mortgage to be subordinated to its mechanics lien
  • Mortgage assignment cannot be compelled absent a written agreement to execute the assignment
  • Inaccurate description of the property being foreclosed in the notice of sale, which referenced the judgment of foreclosure with a correct description, does not require setting aside of the sale as prospective purchasers would have not been misled
  • State enabling legislation for a one percent Nassau County Transfer is expected to be enacted
  • United States Supreme Court holds that federal courts are not authorized to issue “Mareva“ injunctions
  • A copy of a promissory note can be enforced
  • Restrictive covenant can be enforced by an adjoining landowner which is a third party beneficiary of the restriction
  • Real estate taxes can attach while the RTC held a mortgage on the property
  • A reverse mortgage, as a credit line mortgage under Real Property Law Section 281, is not limited to advances over a twenty year period
  • On its payment of the a debt a guarantor is subrogated to the rights of the lender and can demand an assignment of the note and mortgage

Issued June 17, 1999

  • An improper acknowledgment may impact constructive notice
  • Bankruptcy - Unpaid post-petition, pre-rejection rent is not a super-priority administrative expense claim
  • First mortgage on a condominium unit at Battery Park City held to have priority over ground rent due the BPCA
  • The First American Title Insurance Company of New York has been certified as an Accredited Provider of continuing legal education in the State of New York
  • No indemnification of cooperative corporation directors under New York law for certain actions
  • Form of UCC Financing Statements for the Department of State
  • Subleasing public New York City hospitals requires state legislation
  • First American Title Insurance Company, of California, announces its International Title Insurance Policy
  • Yellowstone injunction held not to supersede a lease provision requiring payment of interest on rent arrears
  • Prepayment premium in a nonresidential commercial mortgage is valid and enforceable
  • Usury-avoidance provision does not limit the enforcement of state usury laws

Issued April 26, 1999

  • Foreclosure - Erroneous property description in notice of sale held not misleading
  • “Credit Line“ mortgages and loans to fund or reimburse expenses for improvements
  • New York City Tax Lien Sale scheduled for May 24
  • Procedure to adjust water meter accounts in New York City
  • Tenancy by the Entirety - Mortgage by wife held to lien property awarded to husband in divorce
  • Suffolk County/Peconic Bay Region Transfer Tax
  • New York State Transfer Tax - “Interim Term“ not included in determining if a lease term is at least 49 years and taxable

Issued February 16, 1999

  • Easement by grant is not revoked by reason of alternative access
  • Recreational use to be considered in analysis of navigability
  • IDA Owner's title policy endorsement
  • New Continuation of Liability provisions for an Owner's title policy
  • State WEB site for Institutional History of Banks

Issued December 1, 1998

  • Statutes enacted for the merger and consolidation of certain business entities
  • Easement of right of way may in certain instances be relocated by the burdened property owner
  • A Not-for-Profit Corporation can be subject to the Religious Corporation Law
  • New York City building facade inspections under Local Law 11 of 1998
  • New York City Tax Warrants may be enforced by City Marshals
  • New York City Landmarks - Local Law 1 of 1998 sets forth alternative procedures to enforce the Landmarks Law
  • Suffolk County/Peconic Bay Region Transfer Tax
  • City of Yonkers Transfer Tax

Issued October 14, 1998

  • New York Uniform Forms of Acknowledgment

Issued October 1, 1998

  • Acknowledgments - Uniform Forms
  • Federal Priority Statute and Federal Tax Liens - United States v. Estate of Romani
  • Judgments - Misspelling the name of the judgment debtor
  • New York City Real Property Transfer Tax - Draft Amendments for the mere change of identity or form of ownership exemption
  • Prejudgment Attachments - “Mareva“ Injunction
  • “Star“ Exemption - Closing adjustment
  • Receiver in a mortgage foreclosure to receive all security deposits from the owner of the property
  • Continuing Legal Education requirements

Issued June 24, 1998

  • Condominium Common Charge Lien not extended by mortgage foreclosure
  • Cooperative Converts to Condominium
  • Amendment to Georgia Statute governing capacity to act as a fiduciary
  • Non-judicial mortgage foreclosure legislation passed by New York State Legislature
  • Lease by mortgagor after foreclosure judgment is a nullity
  • Purchaser for value retains title on reversal of foreclosure judgment where no stay obtained
  • Statutory 9 % default rate applies post foreclosure judgment when loan documents do not clearly state that the loan's default rate applies
  • Dissolved corporation can file a mechanics lien for work prior to dissolution to wind up its affairs
  • New York City Real Property Transfer Tax - Draft Amendments for the mere change of identity or form of ownership exemption
  • Sale Leasebacks/Synthetic Leases - FASB Emerging Issues Task Force Issues Bulletin 97-10
  • Enabling legislation passed for Community Preservation Funds and Transfer Taxes in the towns of the Peconic Bay Region of Suffolk County, New York (East Hampton, Riverhead, Shelter Island, Southampton and Southold) (Chapter 114 of the Laws of 1998)

Issued May 11, 1998

  • Adverse Possession - Exclusive possession for twenty years by a co-tenant in common
  • New York City Real Property Transfer Tax - Draft Amendments for the Continuing Lien exclusion (deduction)
  • Business Corporation Tax Amendments
  • Amended Rules of the Chief Administrator (“Sanction Rules“) - Signing of pleadings, motions and other papers submitted to the court

Issued March 24, 1998

  • Mortgage Recording Tax - Informal interpretation of commercial credit line mortgage statute
  • New York City Real Property Transfer Tax - Continuing lien deduction not allowed for transfers in a matrimonial
  • New York City Tax Lien Sales - Schedule of pending sales
  • Cooperative Units - Uniform Commercial Code to be applied in assessing liquidated damages for breach of a contract to sell a cooperative apartment
  • Deficiency Judgments - Amendment of complaint after entry of judgment

Issued February 16, 1998

  • New York City Real Property Transfer Tax - Continuing lien deduction
  • New York City Real Property Transfer Tax - Rate for combined units
  • New York City Tax Lien Sales - Authority extended and other amendments
  • Amended Rules of the Chief Administrator (“Sanction Rules“) - Signing of pleadings, motions and other papers submitted to the court
  • Bankruptcy - Damages against guarantor of a lease limited by Code Section 502(b)(6)
  • Deficiency Judgments - Amendment of complaint after entry of judgment

Issued January 5, 1998

  • New York City - New rule for combination of apartments relating to Certificates of Occupancy
  • Child Support - Liens for child support obligations
  • Leases - Extension of a lease held to constitute a new lease subject to an intervening fee mortgage
  • Amended Rules of the Chief Administrator (“Sanction Rules“) - Signing of pleadings, motions and other papers submitted to the court
  • Title Policy Endorsements - New forms of non-imputation and revolving credit endorsements and the Junior Loan Policy in New York
  • Web site for municipal codes

Issued November 24, 1997

  • Mortgage recording tax - City of Yonkers
  • Executory Clause - Application of State Finance Law, Section 41 held void under Contract Clause
  • FIRREA - FDIC's assignee succeeds to its rights as to real estate tax liens
  • Mortgage Foreclosures - Tenants retain protection of rent regulations
  • Foreign Terrorist Organizations - Blocking of funds on real estate closings
  • Mechanics Liens - Vacated for failure to serve all owners within thirty days under Lien Law, Section 11
  • Mechanics Liens - Vacated lien filed by lessee's broker
  • Merger - Provisions in a separation agreement held not merged into deed
  • Rent Stabilization - “Carryover Liability“ for rent overcharges

Issued September 10, 1997

  • Commencement of an action by filing proof of service
  • Condominiums - Financing against common charges
  • Federal Estate Taxes - Increased exemption
  • New York City Real Property Transfer Tax - Continuing Lien deduction
  • New York City Real Estate Taxes - Change in rates

Issued August 14, 1997

  • New York City Real Property Transfer Tax - Continuing Lien deduction
  • Acknowledgments - Uniform form
  • Lifetime Trusts
  • Mortgage Foreclosures - Payment of real estate taxes
  • New York City Vault Charges
  • Tax Warrants - Lien period
  • New York City Department of Finance Web Site

 
 
 
For General Inquiries Please call 1 866 FIRSTNY (1.866.347.7869)