LIEB BLOG

Legal Analysts

Friday, March 20, 2020

NYS, FHA, Fannie Mae and Freddie Mac Mortgage Relief Plans Do Not Automatically Waive Mortgage Payments

On March 19, 2020, Governor Cuomo announced a 90-day Mortgage Relief Plan ("Plan") for New York State mortgage borrowers. New York State mortgage servicers are directed to provide 90-day mortgage relief to borrowers affected by the novel coronavirus (COVID-19). The Plan aims to provide the following relief:
  • Waiving mortgage payments based on financial hardship;
  • No negative reporting to credit bureaus;
  • Grace period for loan modification;
  • No late payment fees or online payment fees; and
  • Postponing or suspending foreclosures.
While the Plan does bring immediate relief to homeowners affected by the coronavirus (COVID-19), the Plan does not simply waive mortgage payments due in the next 90 days. In his press conference, Governor Cuomo clarified, "We're not exempting people from the mortgage payments. We're just adjusting the mortgage to include those payments on the back end."

Currently, specific procedures on how to apply and/or how to qualify under the Plan is yet to be published, so stay tuned. Until then, borrowers should retain counsel to apply and negotiate with their mortgage lender or servicer for a forbearance plan to prevent incurring interest and fees for missed payments.

Mortgage relief plans are also in place for FHA, Fannie Mae, and Freddie Mac mortgages. Similar to New York State's Plan, however, borrowers should be aware that the mortgage payments are not automatically waived nor placed on hold and they should retain counsel to apply and negotiate with their mortgage servicer immediately.


Remote (Mail Away) Real Estate Closings are Here - Governor Issues Order

NYS' Governor Cuomo has ordered the permissibility of video notarization through April 18, 2020 as follows:

"Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

  • The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
  • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
  • The person must affirmatively represent that he or she is physically situated in the State of New York;
  • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
  • The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
  • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution." 
Now, real estate brokers / salespersons / attorneys / loan officers, and the like, should get to work - we have real estate closings to get done!

Thank you Governor Cuomo for hearing our requests. 

NYS legislature should vote to make this permanent by passing S4352B as we discussed in 5 Real Estate Laws to Know in These Times.  

Thursday, March 19, 2020

60-Day Moratorium on Foreclosures and Evictions for FHA, Fannie Mae, and Freddie Mac Mortgages

On March 18, 2020, the U.S. Department of Housing and Urban Development (HUD) authorized the Federal Housing Administration (FHA) to implement a 60-day moratorium on foreclosures and evictions for single family homeowners with FHA-backed mortgages. Similarly, the Federal Housing Finance Agency (FHFA) also directed Fannie Mae and Freddie Mac to suspend foreclosures and evictions for single family mortgages for at least 60 days. These moratoriums were intended to curb the effects of the coronavirus (COVID-19) on homeowners and in connection with the proclamation of the COVID-19 outbreak as a national emergency.

The 60-day moratorium for FHA, Fannie Mae, and Freddie Mac mortgages took effect on March 18, 2020. For FHA mortgages, the moratorium applies to all FHA Title II Single Family forward and Home Equity Conversion Mortgage (reverse) mortgage programs and covers the initiation of foreclosures up to completion of foreclosures in process. Evictions from properties secured by FHA, Fannie Mae and Freddie Mac single family mortgages are also on hold for 60 days.

In addition to HUD and FHFA moratoriums, all evictions and foreclosures are indefinitely suspended in the counties of Nassau County and Suffolk County.

Coronavirus Family/Sick Leave Bill Signed Into Law

On March 18, 2020, President Trump Signed The Families First Coronavirus Response Act into law. The new law contains several modifications from the original bill passed by the House. Employers must immediately draft policies and train human resources employees to implement the new law. In addition, Employers must post a Notice in the workplace as detailed below.

Here is a summary of key provisions of the new law that apply to employers/employees:

1) Emergency Family and Medical Leave Expansion Act

Effective Dates: April 2, 2020 – December 31, 2020.

Qualified Employers/Employees: Applies to employers with less than 500 employees for all employees who have been employed for at least 30 calendar days.

Reason for Leave: The qualifying reason for leave is limited to an employee who is "unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable due to a "public health emergency."

Amount of Pay (tax credits are available to employers): The first 10 days of leave are unpaid (employee may substitute accrued vacation, personal or sick leave). For the following 10 additional weeks, the employer must compensate the employee at a rate of no less than two-third's of the employee's regular rate of pay. However, such pay is capped at $200 per day and $10,000 total.

Job ProtectionPosition is protected until return from leave unless employer, who employs 25 or fewer employees, eliminates position due to a downturn in economic conditions as a result of the Coronavirus. However, employers would still have to make "reasonable efforts" to restore employee to the same or equivalent position.

Exemptions: The Act provides authority to the Department of Labor to exclude health care providers, emergency responders and employers with less than 50 employees where the "viability of the business as a going concern" would be jeopardized.

2) Emergency Paid Sick Leave Act

·         Effective Dates: April 2, 2020 – December 31, 2020

·         Qualified Employer/Employee: Covers all employers with less than 500 employees for all employees regardless of length of employment.

·         Reasons for Leave: Employee may take leave under this Act, if unable to work (or telework) for any of the following reasons:
  • The employee is subject to federal, state or local quarantine as a result of the Coronavirus;
  • The employee has been advised by a health care provide to self-quarantine as a result of the Coronavirus;
  •  The employee is experiencing symptoms of the Coronavirus and is seeking a medical diagnosis;
  •  The employee is caring for an individual who is subject to an order described in Section 1, or advised as described in Section 2;
  • To care for a child whose school is closed or his/her regular child care provider is unavailable;
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. 
Amount of Pay (tax credits are available to employers)Employers must pay all employees who qualify under reasons 1-3 above at the employee's regular rate of pay, capped at $511 per day and $5,110 total. However, if employee's leave is a result of reasons 4-6 above, employer must only compensate employee at 2/3 of his/her regular rate of pay, capped at $200 per day and $2,000 total.

Exemptions: Health care providers and emergency responders.

Wednesday, March 18, 2020

Coronavirus Frustrates the Purpose of a Sit Down Restaurant's Lease, No?

Can a tenant terminate a lease because their purpose was frustrated?

We are getting contacted by restaurateurs who want to get out of their lease because they have to close their sit down / dine in operation and only offer delivery / take out, but can they?

The appellate courts have held that "[i]n order to invoke this defense, 'the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.'"

On that holding, the doctrine of frustration of purpose seems like it may get a restauranteur out of their lease.

In that holding, an office was able to terminate their lease because the CO didn't permit office use. Through analogizing to where an office tenant utilized frustration of purpose to get out of a lease because of an "inability to lawfully use the premises" based upon the CO, it's possible that a restaurateur can utilize the doctrine of frustration of purpose to terminate the lease where the purpose of the lease was to offer sit-down dining and now the same is not allowed as a matter of law.

However, appellate courts have also held that "a frustration of purpose defense 'is not available when the event preventing performance was foreseeable.'"

Expect a lot of restaurants to make this argument going forward and the issue of foreseeability will be everything if it gets to a trial. 

Attention Insurance Companies - DFS Puts More on Your Plate

The Department of Financial Services' Circular No. 5 (2020) is making its rounds and requires all entities regulated by DFS to submit a COVID-19 Preparedness Plan. All regulated entities are required to submit the plan on or before Thursday, April 9, 2020.

DFS is requiring the Preparedness Plan to account for both operational and financial risks. On the operational side, the plan should include:
  1. Preventative measures tailored to the entity’s specific profile and operations to mitigate the risk of operational disruption, which should include identifying the impact on consumers and vendors;
  2. A documented strategy addressing the impact of the outbreak in stages, so that the entity’s efforts can be appropriately scaled, consistent with the effects of a particular stage of the outbreak;
  3. Assessment of all facilities, systems, policies and procedures necessary to continue critical operations and services if members of the staff are unavailable for longer periods or are working off-site, including the effectiveness and security of remote access;
  4. Employee protection strategies, critical to sustaining an adequate workforce during the outbreak, including employee awareness and steps that employees can take to reduce the likelihood of contracting COVID-19;[1]
  5. Assessment of the preparedness of critical third-party service providers and suppliers;
  6. Development of a communication plan to effectively communicate with consumers and vendors, and to deliver important news and instructions to employees, along with establishing forums for questions to be asked and addressed;
  7. Testing of the plan to ensure that the policies, processes, and procedures are effective; and
  8. Governance and oversight of the plan, including identifying the critical members of a response team, to ensure ongoing review and updates to the plan, including the tracking of relevant information from government sources and the entity’s own monitoring program.
On the financial risk side, the plan should include: 
  1. Assessment of the overall impact of COVID-19 on reserve requirements, consumers’ ability to make timely premium payments, and resources required to timely process claims;
  2. Assessment of the credit risk of counterparties and business sectors impacted by COVID-19;
  3. Assessment of the credit exposure to counterparties and business sectors impacted by COVID-19 arising from investing and other financial transactions;
  4. Assessment of the scope and the size of admitted assets or other investments adversely impacted by COVID-19 that currently are in, or potentially may move to, non-performing/delinquent status, including consideration of stress testing and/or sensitivity analysis of such assets or investments;
  5. Assessment of the valuation of assets and investments that may be, or have been, impacted by COVID-19; and
  6. Assessment of the overall impact of COVID-19 on earnings, profits, capital, and liquidity.
A full copy of Circular No. 5 (2020) can be found HERE

If it seems that DFS is just here to put more on your plate when you need it least, DFS has also issued a temporary COVID-19 relief order which improves the ability of banks and insurers to operate remotely. A full copy of the temporary relief order can be found HERE. 



Nassau and Suffolk County Evictions and Foreclosure Auctions on Hold

Effective 5:00 pm on March 16, 2020, no eviction orders shall be signed and no foreclosure auctions shall be held in all Nassau and Suffolk Courts. The hold is in effect until rescinded and it is in accordance with the protocol put into place by the Chief Administrative Judge of New York State Courts due to COVID-19.

You can see the Nassau County Administrative Order here and the Suffolk County Administrative Order here.

Courts Are Closed | Lieb at Law is Working For You

The Coronavirus is Affecting Us All
The spread of the novel coronavirus, COVID-19, has resulted in the disruption of everyone's daily lives, including the legal world. However, Lieb at Law is still operating at 100% capacity and working for you.
 
Lieb at Law is Fully Operational
Lieb at Law is a fully digital law firm. Thanks to our existing cloud systems, our staff is operating at full capacity from outside of the office. All attorneys, paralegals and support staff have full access to our telephone, case management, and file management systems. Because of our ability to work remotely, our office is currently not physically staffed. Please do not come to our office without an appointment. If you have any questions about your case, transaction, or any other legal matter, please contact us through phone or email and we will attempt to immediately assist you.

Lieb is Leading The Way on Remote Closings 
Real Estate Transactions (Closings) are moving forward and Lieb at Law is leading the move to fully remote closings, including requests to our government to change laws, rules, and regulations to facilitate remote notarizations (the only time that you currently need to see another human in a real estate deal). Our attorneys and paralegals are using every tool available to ensure closings occur on time, without cancelation. Our attorneys and paralegals will contact you to advise you exactly how your closing will proceed, and when.

Lieb is Still Litigating
The Court system is shutting down all non-emergency functions. New rules and procedures are being implemented every day and Lieb at Law is up to date with every change. Depositions, trials, mediations, arbitrations, court conferences, and other in-person proceedings are being adjourned administratively by the courts beyond April 30, 2020. If you had a legal proceeding scheduled to occur before April 30, 2020, it likely has already been adjourned. We are contacting our clients to inform them of these adjournments, but if you are unsure if you should appear at any scheduled proceeding, please contact us ahead of time to confirm its status. 

While the Courts are closed, we are still litigating. Discovery demands, and responses, motions, negotiations, and other proceedings that do not require in-person interactions are continuing. We will work diligently to ensure that your case is minimally affected by the Court closures. In fact, this is a great opportunity for settlement and we are working diligently to resolve cases outside of the court system.

Lieb Knows Employment Law
Lieb at Law attorneys are tracking the development of employment laws that are accompanying mass quarantines and the shuttering of businesses. Whether you are an employer or an employee, it is important that you know and understand your rights and obligations. We can answer all your employment questions, and we encourage you to follow our blog (blog.liebatlaw.com), call or email for all of the latest news and developments. 

Lieb is in Bankruptcy Law
We relaunched our bankruptcy practice (previously operated during the Great Recession) to combat the needs of our clients, particularly businesses that are facing revenue shortfalls and must restructure their debts to survive the quarantines. Contact us for a consultation should you or your business have questions about a Chapter 7, 11 or 13.

Lieb Leads the Way
We've been ready the entire time for this. We are agile and leverage technology like no other law firm around. Lieb at Law has always been at the forefront of the evolving legal landscape. During the Great Recession and the foreclosure crisis, we rose to the top and differentiated ourselves as a leader by knowing more about the new laws and regulations than anyone else. In fact, we trained the legal and real estate brokerage industries through our continuing education classes. Our talented attorneys and paralegals are dedicated to remaining the first to know and understand changes in laws that accompany tumultuous times. In 2020, Lieb at Law is even more capable. Whatever changes the novel coronavirus brings, you can trust that Lieb at Law will be leading the way with legal solutions. 

Please be safe and take all necessary precautions to protect yourself and your loved ones. 




Governor Cuomo Announces Legislation Providing Paid Leave and Job Protection to Employees

On Tuesday March 17, 2020, Governor Cuomo announced that the New York State legislature has agreed to paid sick leave and other protections for employees as a result of the impact of the Coronavirus. While the text of the bill has not yet been released and has not passed the legislature, the Governor announced that the legislation, which will become effective immediately upon enactment, will include the following:

  • Employers with 10 or fewer employees and a net income less than $1 million will provide job protection for the duration of the quarantine order and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million will provide at least 5 days of paid sick leave, job protection for the duration of the quarantine order, and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 100 or more employees, as well as all public employers (regardless of number of employees), will provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order. 

The legislation will also include annual sick leave (similar to the NYC law), which will be effective 180 days after enactment. The legislation, according to the Governor, will include the following:

  • Employers with 4 or fewer employees and a net income less than $1 million will provide at least 5 days of unpaid sick leave each year.
  • Employers with 5-99 employees and employers with 4 or fewer employees and a net income greater than $1 million will provide at least 5 days of paid sick leave each year.
  • Employers with 100 or more employees will provide at least 7 days of paid sick leave each year. 



Tuesday, March 17, 2020

New Coronavirus Sick Leave Laws for Employers / Employees

On March 14, 2020, to combat Coronavirus' impact on employment, the House of Representative passed a bill.

This bill must still be passed by the Senate and signed into law by the President to be effective.

If effective, this bill will provide paid leave benefits to many employees in the form of an extension of the Family Medical Leave Act ("FMLA") and the implementation of a new Paid Federal Sick Leave law.

Employers should immediately begin preparing polices and leave request forms in anticipation of this new law going into effect to ensure compliance and avoid exposure.

Here is a summary of the new leave bill as currently constituted:

1) Extension of FMLA Leave
  • Applies to employers with less than 500 employees.
  • Applies to employees who have been employed for at least 30 calendar days.
  • Excludes health care provides, emergency responders and employers with less than 50 employees where the "viability of the business as a going concern" would be jeopardized.
  • The first 2 weeks are unpaid; Remaining 10 weeks at 2/3 employee's regular rate of pay.
  • Leave can be taken for the following reasons:
    • In adherence of recommendation of health care provider, that employee's presence at work would place others at risk because of the employee's exposure to Coronavirus or because the employee exhibits symptoms related to the Coronavirus (these conditions must render employee unable to both perform the functions of his/her job while complying with the recommendation/order);
    • To care for a family member, where a health care provider or authority determines that the family member needs to remain isolated from the community because he/she has been exposed to the Coronavirus or exhibits symptoms of the Coronavirus; or
    • To care for a child whose school is closed or his/her regular childcare provider is unavailable.

2) Paid Sick Leave
  • Applies to employers with less than 500 employees. 
  • Employers are required to pay employees up to 80 hours of paid sick leave.
  • Paid sick leave may be used for the following reasons:
    • To self-isolate because employee was diagnosed with Coronavirus;
    • To seek medical care if employee is experiencing symptoms related to Coronavirus;
    • To comply with recommendation/order by health care provider or public official that employee's presence in the workplace would jeopardize the health of others because of employee's exposure to the virus or the employee exhibiting symptoms of the virus;
    • To care for a family member who qualifies under the previous provision; or
    • To care for a child whose school is closed or his/her regular child care provider is unavailable. 
  • Employers must pay all employees who qualify at the employee's regular rate of pay. However, if employee's leave is a result of the 4th or 5th reason above, employer must only compensate employee at 2/3 of his/her regular rate of pay. 

3) Timing/Job Protections/What is not Covered?
  • The bill would take effect 15 days after it is enacted and would be effective only until the end of 2020.
  • Position is protected until return from leave unless employer, who employs 25 or fewer employees, eliminates position due to a downturn in economic conditions as a result of the Coronavirus. However, employers would still have to make "reasonable efforts" to restore employee to the same or equivalent position.
  • This bill, as presently constituted, does not provide protections for employees whose employment is suspended or terminated due to employer closures.



Monday, March 16, 2020

Real Estate Tips: How to Invest with Partners

Real Estate Investing Coach Andrew Lieb discusses how to structure your agreements when investing in real estate with partners. Have you considered each party's roles and responsibilities, capital contributions, buy out options, and how to limit exposure to your personal assets? It's time to structure your deals with more than a handshake.

Listen to this podcast here




Coronavirus & Foreclosure: It's about to get real



With quarantine, foreclosures are next.

We are heading for a recession and possibly a depression the likes of which we haven't seen before.

Jobs are going to be lost, tenants aren't going to pay rent, mortgage payments are going to be missed and banks will have no choice but to start to pursue foreclosure.

If you are currently in a foreclosure proceeding, you should know that the courts have just rescheduled (adjourned) all foreclosure settlement conferences (CPLR 3408) for at least 45 days while they work on new orders and directives for the process.

This is going to be a mess.

If you are concerned about your mortgage, you need to act immediately and negotiate a forbearance (i.e., banks often agree to refrain from pursuing a foreclosure for a period of time for no or reduced payments) with a lender before going into default.

Get ready - the next foreclosure crisis is here.


Friday, March 13, 2020

NYC Housing Court on Eviction Moratorium Due to Coronavirus

Effective March 13, 2020, the New York City Housing Courts are on a one-week moratorium on evictions in New York City, subject to further extension upon review. Further, New York City Housing Court is also directed to decline to issue new eviction warrants when a party has not appeared in court, until further notice.

This moratorium is imposed through a memorandum on the coronavirus from the Chief Administrative Judge of the State of New York Unified Court System. You can read the memorandum here.





Attention Idiots - You will get sued if you ignore quarantines & expose others to COVID-19

Coronavirus is NOT a HOAX - idiots - you are killing people.

A lot of people ask me what the MPH stands for after my name - Master in Public Health.

Plus, that Esq. thing makes me a litigator.

I keep reading about unqualified people telling you about coronavirus - well, I'm qualified & maybe it's time that we go back to relying on a meritocracy where you listen to the ones with diplomas on the wall rather than some rambling buffoon. This blog should help motivate you.

Did you know that Courts have ruled that "[a] duty to disclose has been held to exist where the
defendant knew or should have known that he or she had a communicable disease?"

Under the NYS Public Health Law §2(1)(l), a communicable disease "means infectious, contagious or communicable disease." Further, pursuant to 10 NYCRR 2.1 "Severe or novel coronavirus" is designated as a "communicable disease".

Based upon established case law, if someone is infected with coronavirus from an idiot who breaks quarantine they should sue for negligent transmission of the disease. Silver v. Levittown Union Free School District

I'm talking to you, idiot who took the plane to Florida
I'm talking to you, idiot who went to the daddy-daughter dance
I'm talking to you, idiot who went to a business event

This is not a joke, a drill, a hoax, a conspiracy or something the Democrats are doing to Trump - this is life & death.

If that doesn't matter to you, I hope the fact that you now know that you will be sued changes your mind.

If it doesn't, did you know that NYS Public Health Law §2120 permits involuntary commitment of dangerous and careless patients? Plus, §2101 has reporting requirements for physicians, superintendents or officers of institutions, householders, hotel or lodging housekeepers, or any other person where a report must be made to the health officer of the local health district.

What this means is if you are a conspiracy theorist on coronavirus, we are watching you, we are reporting on you, we will sue you and you will be quarantined anyway. Get it?

Please respect quarantines - they matter!


Thursday, March 12, 2020

Coronavirus & Commercial Leasing: What happens when your tenant doesn't pay rent?

Landlords - Here is your future:
  • There is a Coronavirus quarantine (voluntary or mandatory), which closes your property;
  • Tenant is forced to close;
  • Being closed, tenant makes no revenue or limited revenue from working from home;
  • Without revenue, tenant defaults on rent;
  • Without rent, landlord is now at risk of foreclosure and bankruptcy; and
  • Consequently, landlord will need to enforce its lease to stave off foreclosure and bankruptcy.


Can landlord successfully enforce its commercial lease?

If landlord seeks to enforce the lease, tenant will likely counterclaim for a rent abatement (reduction or elimination of rent) because of its inability to utilize the property. 

Who is going to win? 

The result likely depends on whether the lease has a clause called a "Force Majeure" or "Non-Performance" or something like that. 

This clause may read something like this: 
The Parties shall not be liable for any failure, delay or interruption in performing such Party's respective obligations hereunder due to causes or conditions beyond the control of such Party. Further, such Party shall not be liable unless the failure, delay or interruption shall result from the failure on the part of such Party to use reasonable care to prevent or reasonable efforts to cure such failure, delay or interruption.
"Causes or conditions beyond the control of such Party", shall mean and include acts of God ... war ... acts of third parties for which such Party is not responsible ... or any other condition or circumstances, whether similar to or different from the foregoing (it being agreed that the foregoing enumeration shall not limit or be characteristic of such conditions or circumstances) which is beyond the control of such Party or which could not be prevented or remedied by reasonable effort and at reasonable expense.
If the clause exists, the landlord has a shot at victory, but without the clause, the tenant will likely prevail, at least in part.

If the clause exists, the landlord's victory is dependent on the specific language of the clause. That is because of the rule that "[o]rdinarily, only if the force majeure clause specifically includes the event that actually prevents a party's performance will that party be excused." As a result, the language of the clause is everything.

Assuming the sample clause exists in the lease, here are the impending battlegrounds for ensuing litigation on enforcing the lease:

  • Is Coronavirus an act of god? 
  • If yes, is a quarantine resulting from Coronavirus also an act of god?
  • If no, is a quarantine resulting from Coronavirus an act of third-parties? 
  • If yes, did landlord undertake efforts to prevent the quarantine at the property? 
  • If yes, were those efforts reasonable? 
  • If no, did landlord undertake efforts to remedy the Coronavirus spread at the property?
  • If yes, were those efforts reasonable?  

We know that these lawsuits are coming and they are going to come fast. These lawsuits came after 9/11 - see One World Trade Center LLC v. Cantor Fitzgerald Securities. Only this time they are going to be everywhere because unlike 9/11, Coronavirus is everywhere.

Landlords - now is the time to ascertain your rights, determine your enforcement plan and create a contingency strategy. If you cannot enforce your lease, it's time to contact your lender and seek a forbearance (temporary reprieve from mortgage payments to avoid foreclosure). Doing nothing will create a strong likelihood of foreclosure and bankruptcy. It's time to act.





  

Friday, March 06, 2020

Real Estate Tips: Evaluating Projected Revenue

Tune in Sunday 3/8/20 at noon on LI News Radio 103.9 FM where Real Estate Investing Coach Andrew Lieb discusses projected revenue in real estate. Find out what information to request prior to negotiating terms of the deal. Discover tips to enhance future revenue and how to protect yourself from acquiring bad leases.

After the show airs - the Podcast will be available here. 


Residential House Flipping and Month-to-Month Leases

Tune in Sunday 3/8/20 at noon on LI News Radio 103.9 FM where Real Estate Investing Coach Andrew Lieb discusses what to look out for when flipping residential real estate. Learn the true costs of real estate transactional fees and policies that mortgage lenders have against issuing loans when the contract of sale dates are too close in time. Andrew Lieb also goes over what you need to know about evicting tenants that have month-to-month leases.

After the show airs - the Podcast will be available here. 



Coronavirus: What Employers Need to Know

Coronavirus: What Real Estate Investors Need to Know

Wednesday, March 04, 2020

Real Estate Investing with Andrew Lieb | 3/1/20 Show Now Available as a Podcast

FM 103.9 radio show on real estate investing is now available as a podcast. You can download the latest episodes here! This week we discussed writing a business plan for real estate investing, property management advice and the new law coming to NY that requires real estate brokers to provide a form to their tenants and buyers about how to sue the broker, landlord and seller for discrimination.

Monday, March 02, 2020

Podcast | New Discrimination Law Coming to NY: Notice of Right to Sue from Brokers

Discrimination in housing is no joke and real estate investors are exposed more than ever before. In this #METOO movement, elected officials all over the country have assured the public that they will be enforcing discrimination laws. In fact, we are about to see a new law in New York State that forces Real Estate Brokers to provide a new form to buyers and tenants that shows them how to sue for discrimination. Real Estate Investing Coach Andrew Lieb provides an update to the pending regulation and what landlords and brokers can do to prepare for this new law.



Podcast | Real Estate Tips: Business Planning

Wednesday, February 26, 2020

Top 5 Labor and Employment Laws of 2019

Tuesday, February 25, 2020

Top 10 Real Estate Laws of 2019

Tuesday, February 18, 2020

Why do banks care about your flood insurance?

Citibank recently paid $17,998,510.00 pursuant to a consent order for failing to place floord "insurance in a timely manner on residential Designated Loans and engaged in a pattern or practice of violations of the Flood Act and its implementing regulations, including 12 C.F.R. § 22.7(a)".

That's almost eighteen million reasons to care.




Monday, February 17, 2020

Real Estate Investing with Andrew Lieb - Guest Interview Opportunity

Friday, February 07, 2020

Recent Legal Matters CE Course & DOS Guidance on Paying Landlord's Agents

Last night, 2/6/2020, we were thrilled to have a packed house attending our new CE - Recent Legal Matters.

Image may contain: 10 people, people sitting and indoor

While not specifically a course topic, the DOS Guidance's Additional FAQs (updated: 1/31/2020) was brought up by students. Specifically, students inquired about FAQ #5:
5. CAN A LANDLORD’S AGENT COLLECT A “BROKER FEE” FROM THE PROSPECTIVE TENANT? No, a landlord’s agent cannot be compensated by the prospective tenant for bringing about the meeting of the minds. NY RPL § 238-a(1)(a) provides, in part, “no landlord, lessor, sub-lessor or grantor may demand any payment, fee, or charge for the processing, review or acceptance of an application, or demand any other payment, fee or charge before or at the beginning of the tenancy, except background checks and credit checks….” The fee to bring about the meeting of the minds would be a “payment, fee or charge before or at the beginning of the tenancy” other than a background or credit check as provided in this section. Accordingly, a landlord’s agent that collects a fee for bringing about the meeting of the minds between the landlord and tenant (i.e., the broker fee) from the tenant can be subject to discipline. 
What good timing for this to come up because our course materials included an explanation of the requirements for an agency (DOS) to issue a regulation, which were not undertaken with respect to this Guidance. As such, the Guidance is NOT law, but, instead an agency's interpretation of law. With respect to the Guidance constituting an interpretation rather than law, we explained how and when an agency's interpretation is given deference by the courts who are the co-equal branch of government with the constitutional authority to be the final voice on interpreting statutes (laws). Incident thereto, we shared the following quotes from case law with our students:
It is well settled that “[a]n agency's interpretation of its own regulation ‘is entitled to deference if that interpretation is not irrational or unreasonable’” &
“the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the  administrative agency and its interpretive regulations... And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight.”
Oh, do we expect a legal battle on this issue. Stay tuned. It's going to get entertaining fast.

Friday, January 31, 2020

Employers Exposure When Firing a Pregnant Employee

Attorneys Andrew Lieb and Mordy Yankovich share tips for employers who want to fire a pregnant employee due to employment issues. Learn how the exposure can be over 6 figures and what employers need to do to protect themselves from a lawsuit.




Monday, January 27, 2020

RE Brokers Paying Lawyers is a No-No

For a long time, real estate brokers on Long Island drafted leases for their clients, the landlords. As time passed, these brokers became educated about the illegality of this act and decided to stop committing a felony or being subject to having their license revoked. However, real estate brokers often couldn’t help themselves. They needed to connive another scheme to have the leases drafted for them, rather than simply referring their clients to attorneys as the law required. So, many real estate brokers have found unethical attorneys to draft their leases while the brokers pay such attorneys directly while controlling the representation. Simply, these attorneys are answerable to the broker, not the client.

This article by Andrew Lieb, Esq. published in The Suffolk Lawyer discusses how the unethical attorneys should be checking their mailbox for a letter from grievance.



Thursday, January 23, 2020

Real Tips HR: Non-Compete Agreements & Exposure

As the NYC tech scene keeps getting bigger and bigger, we are seeing more and more employees trying to get poached from one company to another. They are getting thrown oodles of money to leave their jobs. Attorneys Andrew Lieb and Mordy Yankovich share tips on what employees should know when switching jobs when they signed non-compete agreements. Learn what is enforceable and what type of exposure employees and new employers face.



Monday, January 20, 2020

New Law: Independent Contractors in NYC are Protected Against Discrimination and Must be Trained

Effective January 11, 2020, independent contractors in New York City are protected from discrimination or harassment in the workplace and can sue under the New York City Human Rights Law (New York State Human Rights Law already protects independent contractors). In addition, independent contractors in NYC now have a right to request and receive a reasonable accommodation related to their disability, religious observance, etc.

Because independent contractors are protected under the New York City Human Rights Law, companies in NYC with 15 or more employees are now required to provide annual sexual harassment prevention training to independent contractors (It was previously encouraged). Companies must modify their policies and training materials/procedures accordingly. Training under the NYC Human Rights Law must be completed by April 1, 2020.


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. 


Friday, January 17, 2020

Enhanced Fair Housing Regulations Published in State Register - Make Your Comments IMMEDIATELY

On January 15, 2020, Enhanced Fair Housing Provisions (page 12) were officially announced for New York State in the State Register.

Public Comment period goes to March 15, 2020 - make your comments by email:
david.mossberg@dos.ny.gov - or forever hold your peace. 

The proposal includes additions to 19 NYCRR 175.28, 175.29 and 177.9.


Section 175.28. Notification of Fair Housing Laws requires real estate brokers to advise parties how to sue them for discrimination - BE WARNED - it states:

a) A real estate broker shall be responsible to ensure that each individual licensed pursuant to Article 12-A of the New York Real Property Law and associated with such broker provides to a prospective purchaser, tenant, seller, or landlord upon first substantive contact a disclosure notice furnished by the Department, containing substantive provisions of the New York State Human Rights Law. The disclosure notice shall set forth how Human Rights Law complaints may be filed, and such other information as the Department deems pertinent.

b) The disclosure notice required pursuant to paragraph (a) of this section, may be provided to a prospective purchaser, tenant, seller, or landlord by any of the following means: email, text, electronic messaging system, facsimile, or hardcopy. An electronic communication containing a link to the disclosure notice required pursuant to paragraph (a) of this section shall be permissible, provided the communication also contains text to inform the prospective purchaser, tenant, seller, or landlord that the link contains information regarding the New York State Human Rights Law. Oral disclosure does not satisfy the requirements imposed by this section.

c) The disclosure notice required by paragraph (a) of this section shall apply to all real property whether or not it is used or occupied, or intended to be used or occupied, wholly or partly, as a home or residence of one or more persons regardless of the number of units, and shall include: condominiums; cooperative apartments; vacant lands, including unimproved real property upon which such dwellings are to be constructed; or commercial properties.

d) A real estate broker, licensed real estate salesperson, or licensed associate broker that provides the disclosure notice required pursuant to this section by hardcopy, shall obtain a signed acknowledgment from the prospective buyer, tenant, seller, or landlord. Such signed disclosure notice shall be retained for not less than three years. A real estate broker, licensed real estate salesperson, or licensed associate broker that provides the disclosure notice required pursuant to this section by email, text, electronic messaging system, or facsimile, shall maintain a duplicate copy of such disclosure and shall retain the same for not less than three years. If the prospective buyer, tenant, seller, or landlord declines to sign the disclosure notice, the real estate broker, licensed real estate salesperson or licensed associate broker shall set forth under oath or affirmation a written declaration of the facts regarding when such notice was provided and shall maintain a copy of the declaration for not less than three years.

e) A real estate broker shall be jointly liable for any violation of this section committed by any licensed individual associated with such broker.

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Section 175.29. Posting of Fair Housing Laws requires new fair housing signs at offices, websites, & all open houses to advise parties how to sue them for discrimination - BE WARNED - it states:

a) A real estate broker shall display and maintain at every office and branch office operated by such broker a notice, furnished by the Department, indicating the substantive provisions of the New York State Human Rights Law relative to housing accommodations. The notice shall set forth
how Human Rights Law complaints may be filed and such other information as the Department deems pertinent.

b) The notice required by paragraph (a) of this section shall be prominently displayed in the window of such office and any branch office maintained by such broker if such broker also provides listings or other postings in the window of such location and must be visible to persons on that portion of the sidewalk adjacent to such office or branch office. If any office or branch office is not accessible from the sidewalk or if postings are otherwise prohibited by any other applicable law, then the notice
required pursuant to paragraph (a) of this section shall be prominently posted in the same location the business license is posted pursuant to subdivision 3 of section 441-a of article 12 of the Real Property Law.

c) All websites created and maintained by real estate brokers, associate real estate brokers, real estate salespersons and any real estate team, as such term is defined by section 175.25 of this title, shall prominently and conspicuously display on the homepage of such website a link to the Department’s notice as required by paragraph (a) of this section, which shall be made available by the Department.

d) A real estate broker, licensed real estate salesperson, or licensed associate broker shall have displayed at all open houses of all real property the notice required by paragraph (a) of this section. In addition, a real estate broker, licensed real estate agent, or licensed associate broker shall
have available at all open houses and showings of all real property the notice required by paragraph (a) of section 175.28 of this part.

e) A real estate broker shall be jointly liable for any violation of this section committed by any licensed individual associated with such broker.

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Section 177.9. Video Recording and Record Preservation requires schools to record their discrimination trainings - it states:

(a) Every entity approved to provide instruction pertaining to fair housing and/or discrimination in the sale or rental of real property or an interest in real property shall cause a recording to be created of each course in its entirety. Such recording shall contain both video and audio of the instruction.

(b) The recording required by paragraph (a) of this section shall be maintained by the approved entity for at least one year following the date such course was provided to an enrolled student. If the entity knows or suspects that the recording is or will be the subject of litigation, then the approved entity shall maintain such recording as required by law.

(c) The recording required by paragraph (a) of this section may be subject to audit by the Department pursuant to section 177.11 of this part.