Eye on Real Estate Q&A: Co-op Disapproval of Sale and Suing the Board

On this week's episode of Eye on Real Estate, January 18, 2020, we were asked about suing a cooperative board for refusing a sale by creating an absolute floor price, which unit owners had to obtain in order to sell units to third-party purchasers.

Initially, we discussed the business judgment rule, which generally protects boards from lawsuits as long as the board acted in good faith and in accordance with it's power. 

However, there can be a case against the board where the board created an absolute floor price in bad faith or if the board created the absolute floor price beyond its powers as set forth in the bylaws. 

As the courts explain, the test is whether the board's floor is "a provision merely postponing sale during the option period," which is permissible or, if it is, instead, "an effective prohibition against transferability itself," which is impermissible. 

So, if you are being blocked on price, consider a lawsuit after you obtain and review the bylaws. 

For a great explanation of this issue, see Oakley v. Longview Owners, Inc.

Eye on Real Estate Q&A: Rent Control Succession Rights

On this week's episode of Eye on Real Estate, January 18, 2020, we were asked about succession rights of a niece on rent controlled property.

NYC's Rent Guidelines Board actually answers this question as follows:

A rent controlled tenant cannot grant the right to live in the apartment through a will. Nor can someone succeed a rent controlled apartment by paying the rent with personal checks. There are specific rules about who may succeed a rent controlled apartment.In general, for rent controlled apartments throughout New York State, any "family member" of the tenant may have the right to protection from eviction when the tenant dies or permanently leaves the apartment.The family member's right to protection from eviction is dependent upon such family member having resided with the tenant as a primary resident in the apartment for two years immediately prior to the death of, or permanent leaving of, the apartment by the tenant (one year for family members who are senior citizens or disabled persons).The family member may also have the right to protection from eviction if he/she resided with the tenant from the inception of the tenancy or from the commencement of the relationship.If all the requirements for succession are met, the new tenant's rent would be the same as it was when your aunt was the primary tenant, until the next increase, which can occur once a year in rent controlled apartments. 

For definitions of family members, disabled persons and more information, see HCR Fact Sheet #30: Succession Rights.

Or, you may wish to contact NYS Homes and Community Renewal (HCR), the state agency which administers the rent laws.---

It's noted that a niece is not a listed family member for succession rights at 9 NYCRR 2204.6(d)(3) and therefore must prove emotional and financial commitment and interdependence between such person(s) and the tenant to have succession rights on top of the 2 year requirement.

So, as we suggested on the radio, please consult with an attorney rather than just going it alone when seeking these valuable succession rights through a succession application to DHCR. The alternative is an eviction proceeding being brought against you.

Listen to the podcast here. 

New Law: Mortgage Forgiveness Debt Relief Act Extended to 1/1/2021

On December 20, 2019, Public Law No: 116-94 extended 26 USC 108(a)(1)(E) to 1/1/2021. 

According to the IRS, this law "allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualify for this relief."

Short sales, modifications with debt forgiveness, and deeds in lieu of foreclosure are now viable options for many more distressed homeowners for the remainder of 2020.

New Law: Nuisance Call Act - RE Brokers Be Warned - Telemarketers Must Give a Warning to Avoid Heavy Fines

On December 6, 2019, S4777, the Nuisance Call Act, became law and telemarketers must now give specific information to customers starting on March 5, 2020, the effective date of the law, or face heavy fines.

Under the Nuisance Call Act, General Business Law section 399-z now requires that a "telemarketer or seller [] inform[s] the customer that he or she may request that his or her telephone number be added to the seller's entity specific do-not-call list" where the telemarketer must immediately end the call if the customer so elects.

This is serious - fines can be up to $11,000 per violation if you fail to give this information.

Real Estate Brokers must advise all of their associated Real Estate Salespersons immediately and train their teams. In fact, a defense to a fine includes that "the person has trained his or her personnel in the requirements of this section."

Get your training today at Lieb Compliance, LLC.

New Law: Foreclosure Standing Never Waived - Renew Your Case Today

On December 23, 2019, S5160 was enacted and "the defense, in a mortgage foreclosure action, of the plaintiff's lack of standing is not waived because of the defendant's failure to raise such defense in his or her responsive pleading."

A standing defense is utilized to argue that the plaintiff is not the right party to sue in that it's not the owner of the mortgage or debt and has not been appointed the power by such owner to pursue the lawsuit. This is one of the most significant changes to the foreclosure litigation practice since the Great Recession and will impact litigation for years to come.

Real Property Actions and Proceedings Law section 1302-a is an early Christmas present to defendants in ongoing litigation as it took effect immediately and appears to apply up until sale even if a Judgment of Foreclosure has already been ordered. Specifically, the new section states that "[a] defendant may not raise an objection or defense of lack of standing following a foreclosure sale." As such, it appears the defense of standing can be raised at any time before the sale.

If you are defending a case that is post-Judgment of Foreclosure and Sale and pre-auction sale, you may want to consider bringing an Order to Show Cause with a Motion to Renew pursuant to Civil Practice Law & Rules Rule 2221-e immediately.

New Law: The Return of the Yellowstone Injunction

On December 20, 2019, A2554 was enacted to "[p]rohibit[] commercial leases from including a waiver of the right to a declaratory judgment action and states that the inclusion of such a waiver in a commercial lease shall be null and void as against public policy."

New Real Property Law section 235-h took effect immediately on signing.

Welcome back Yellowstone Injunctions - it's like you never left us in the commercial arena. Commercial tenants facing eviction should consult with an attorney to get an injunction immediately before they are evicted.

New Law: Prospective tenants can obtain history of gas & electric charges incurred

On December 20, 2019, Senate Bill S3585 became law.

This bill's purpose is that it "[r]equires gas and electric utility companies to make available to any landlord and lessor of residential rental premises, upon the request of a prospective tenant or lessor of a residential unit, information concerning gas and electric charges incurred from prior occupants of the dwelling."

The bill's justification explains that "[p]eople should have the right to inquire from a gas and electric company the amount of the bills being paid for heat and electric service by the prior customer before they move into a residence. They should not have to rely on a landlord or homeowner's word about how much it costs to heat a residence."

This new law, Public Serivce Law section 66-p, is effective on 4/18/2020.

New Law: Discrimination Commissions

On November 25, 2019, General Municipal Law 239-o was amended to have local Commissions on Human Rights take into account all of the NYS protected classes when seeking to foster mutual respect and understanding in the community.

The protected classes are:

1. ages
2. races
3. sexual orientation
4. gender identity or expression
5. military status
6. sex
7. disability
8. predisposing genetic characteristics
9. familial status
10. marital status
11. domestic violence victim status 
12. creed
13. color
14. national origin

Pointless Legislation? RE Broker Discrimination = License Revocation

Newsday is reporting that "Sen. James Gaughran (D-Huntington) and Assemb. Kimberly Jean-Pierre (D-Babylon) introduced a bill that would expand the state’s authority to suspend or revoke a real estate agent’s license."

Did you know that a law already exists that provides for discrimination = license revocation?

19 NYCRR 175.17(b) states:
No real estate broker or salesperson shall engage in an unlawful discriminatory practice, as proscribed by any federal, state or local law applicable to the activities of real estate licensees in New York State. A finding by any federal, state or local agency or court of competent jurisdiction that a real estate broker or salesperson has engaged in unlawful discriminatory practice in the performance of licensed real estate activities shall be presumptive evidence of untrustworthiness and will subject such licensee to discipline, including a proceeding for revocation. Nothing herein shall limit or restrict the Department from otherwise exercising its authority pursuant to section 441-c of the Real Property Law.

Yes, codifying the law makes sense, but unless DOS prosecutes, what's the point?

Hey Brokers - should a license be lost if a broker is found to have discriminated? 

Just remember, not every charge of discrimination is legitimate.

Let us know your thoughts in comments.

Eye on Real Estate Podcast (11/16): Andrew Lieb, Dottie Herman, Brad Inman, Thomas Drew, Mike Conte

If you missed Eye on Real Estate on 11/16 you can listen to the podcast. Real Estate panel includes:

• Andrew Lieb - Lieb at Law Managing Attorney
• Dottie Herman - Douglas Elliman CEO
• Bradley Inman - Inman Founder
• Thomas Drew - Citizen Bank Executive
• Michael Conte - Insurance Expert

Listen to the Podcast here. 

LLC Owner Disclosure in Condos - Avoid the Bad Advice

News media is reporting that "Condo Buyers Can Keep Purchases Secret, N.Y. Tax Officials Say in Reversal," but is that true?

For reference, see Law Alert: LLC Owners ID Must be Disclosed in Real Estate Deals where we discuss S1730 requiring disclosure of the beneficial ownership of a one-to four-family dwelling unit owned by a LLC on real estate transfer tax forms.

It is noted that the guidance referred to by the Journal cannot be located besides through the use of deduction from a careful reading of the Department of Taxation and Finance website where the term condominium was removed from its "Important Notice regarding conveyances to or from a limited liability company." That being said, real estate professionals are reminded that S1730 wasn't the only law concerning disclosure of owners of LLCs.

Instead, FinCEN had previously issued Real Estate Geographic Targeting Orders that requried such disclosure.

As a result, regardless if the Journal is correct, which remains questionable because it involves an interpretation of S1730, which is the perview of the judiciary, not the executive branch, disclosure remains required for purchases of $300,000 or more in Brooklyn, Queens, Bronx, Staten Island, or Manhattan in New York City, New York.

 

Attention RE Brokers - No More CE Grandfathering + New Required Courses in CE

On 10/23/19, continuing education requirements for NYS real estate brokers, associate real estate brokers and real estate salespersons were changed by A6082. These changes are effective 7/1/21.

Lieb School has got you covered for your continuing education needs. Because our school's courses are written & taught by Andrew M. Lieb, Esq. we have been teaching the required courses this entire time! We know what topics you need to avoid getting sued while making money.

The new law creates 2 new categories of continuing education: "ethical business practices" & "recent legal matters" plus it eliminates grandfathering for brokers who were licensed 7/1/08.

NOW, all licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. The 22.5 hours must include:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions 
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)

Amended RPL §441(3)(a) now states (capital is newly added & [] are deleted):

No renewal license shall be issued any licensee under this article for any license period commencing November first, nineteen hundred ninety five unless such licensee shall have within the two year period immediately preceding such renewal attended at least twenty-two and one-half hours which shall include at least three hours of instruction pertaining to fair housing and/or discrimination in the  sale or rental of real property or an interest in real property, AT LEAST TWO AND ONE-HALF HOURS OF INSTRUCTION PERTAINING TO ETHICAL BUSINESS PRACTICES, AT LEAST ONE HOUR OF INSTRUCTION PERTAINING TO RECENT LEGAL MATTERS GOVERNING THE PRACTICE OF REAL ESTATE BROKERS AND SALESPERSONS IN NEW YORK WHICH MAY INCLUDE STATUTES, LAWS, REGULATIONS, RULES, CODES, DEPARTMENT OF STATE OPINIONS AND DECISIONS, AND COURT DECISIONS AND at least one hour of instruction pertaining to the law of agency except in the case of the initial two-year licensing term for real estate salespersons, two hours of agency related instruction must be completed, and successfully completed a continuing education real estate course or courses approved by the secretary of state as to method, content and  supervision, which approval may be withdrawn if in the opinion of the secretary of state such course or courses are not being conducted properly as to method, content and  supervision. For those individuals licensed pursuant to subdivision six of section four hundred forty-two-g of this article, in the individual's initial license term, at least eleven hours of the required twenty-two and one-half hours of continuing education shall be completed during the first year of the term. Of those eleven hours, three hours shall pertain to applicable New York state statutes and regulations governing the practice of real estate brokers and salespersons. To establish compliance with the continuing education requirements imposed by this section, licensees shall provide an affidavit, in a form acceptable to the department of state, establishing the nature of the continuing  education acquired and shall provide such further proof as required by the department of state. [The provisions of this paragraph shall not apply to any licensed real estate broker who is engaged full time in the real estate business and who has been licensed under this article prior to July first, two thousand eight for at least fifteen consecutive years immediately preceding such renewal.]

Eye on Real Estate - 9/7/19

If you missed Eye on Real Estate this weekend you can listen to the Podcast. Topics include - how to evaluate your insurance coverage and questions to ask to make sure your assets are protected in the event of a storm, understanding what happens when you list property without a broker and more general real estate tips.

Listen Here to the Podcast

Eye on Real Estate Podcasts - 8/31/19

For those of you who missed Eye on Real Estate this weekend - Podcasts are now available.

Topics discussed include the legality of renting out rooms in multiple family dwellings, what happens when you can't get in touch with your broker and more.

Hour 1

Hour 2

Podcasts | Eye on Real Estate 7/13/19

If you missed Eye on Real Estate this weekend, Attorney Andrew Lieb, Esq. joins the show.

Topics include: New rental laws, final walk through & how to handle it as the buyers / sellers, #1 investment isn't multi family houses in real estate, the end of prepaid seasonal rentals.

Listen to the podcasts below:

Click here for Hour 1 

Click here for Hour 2

Download Latest Podcast - Eye on Real Estate

Entertaining podcast with Andrew Lieb, Dottie Herman, Ace Watanasuparp, Steven Gaines and Frank M Conte. Topics include baby boomers and real estate, credit scores, homeowners insurance, cyber issues, exposures homeowners face that they might not even realize. Download Podcast Here

Listen To Podcast of Last Week's 'Eye on Real Estate' Radio Show - Andrew Lieb Joined Panel

On Saturday May 2nd, Andrew Lieb, Esq. joined Dottie Herman's 'Eye on Real Estate' radio show on AM970. Topics discussed included:

• Latest Real Estate Trends
• Inheritance
• Reverse Mortgages
• Commercial Real Estate

Eye on Real Estate - Hour 1

Eye on Real Estate - Hour 2