New Rule for Real Estate Closings Coming Nationwide

On February 16, 2024, the Financial Crimes Enforcement Network (FinCEN) proposed a new rule to mandate certain individuals involved in real estate closings and settlements to report and maintain records on non-financed transfers of residential real property to specific legal entities and trusts nationwide. This proposed rule is called the Anti-Money Laundering Regulations for Residential Real Estate Transfers. 

Reporting persons ("RP") include, but are not limited, to real estate agents, title insurance companies, settlement agents, and attorneys. There is a “cascading” approach, based on the function performed by the person in the real estate closing and settlement that determines which RP has the burden to report. Regardless, real estate professionals would also have the option to designate a reporting person from among those in the cascade by agreement.

RPs are required to report:

1. The names and addresses of reporting persons, transferee entities, transferee trusts, signing individuals, transferors, and any beneficial owners.
2. The citizenship details for all beneficial owners of transferee entities or transferee trusts.
3. The unique identifiers, such as IRS Taxpayer Identification Numbers (TINs), for individuals and entities involved in the transactions.
4. A description of the capacity in which the signing individual is authorized to act, such as legal representative or employee.
5. The details about the total consideration paid for the property, method of payment, accounts used, and the names of payors if different from the transferee entity or trust.
6. The address of the property and a legal description, such as section, lot, and block.

RPs must e-file the report with FinCEN within 30 calendar days after the transferee entity or transferee trust receives the ownership interest in the residential real property. RPs must maintain a copy of the report, any certifications regarding beneficial ownership, and any designation agreements for five years from the date of the report filing.

Note that transfers of real property to individuals, as opposed to an entity (LLC, Corp, LLP) are not covered by this proposed rule. 

If this rule is adopted the effective date will be one year from the date the final rule is issued. This time period is to allow real estate professionals to have sufficient time to review and prepare for the implementation of the reporting requirements. 

Written comments about this proposed rule are being accepted and must be submitted on or before April 16, 2024 by utilizing this link.

SCOTUS Ruling Clarifies Whistleblower Protections

On February 8, 2024, the Supreme Court of the United States rendered its decision for Murray v. UBS Sec., LLC, No. 22-660 (U.S. Feb. 8, 2024). 

The Court held that "[a] whistleblower who invokes [Sarbanes-Oxley] must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with 'retaliatory intent.'”

As such, whistleblowers now have a much lower burden when they are retaliated against for reporting to supervisors or the government their reasonable belief of financial crimes, like wire fraud, securities fraud, violating the SEC, or federal law. 

 

New NY Legislation Enables Remote Witnessing of Health Care Proxies

New York has made a significant advancement in healthcare decision-making with the signing of Assembly Bill A8521, allowing for the remote witnessing of health care proxies. This amendment to the state technology law acknowledges the importance of accessibility and safety in legal processes, particularly in times when in-person witnessing is not feasible. Health care proxies, vital for appointing a trusted individual to make health care decisions on one's behalf if incapacitated, can now be witnessed remotely, ensuring individuals' health care wishes are respected even in challenging circumstances.

Reshaping Access: Residential Security and Keyless Devices

On January 26, 2024, Governor Hochul signed Bill No. S8036, which goes into effect immediately. This bill amends NYS's general business law, prohibiting the installation of certain security devices used to control access to common areas of a residential buildings without proper authorization and notice. 

This bill requires:  

1. The written permission of the owners, board of managers, board of directors, or authorized party of residential buildings for the installation of certain security devices. 
2. If written permission is given, then occupants of a residential building must be given 30 days notice prior to the installation of keyless security devices.
3. The written notice must be either delivered to each individual unit or be posted in a conspicuous location in each common area accessible to residents for 30 days.

Further, the bill provides that under no circumstances may the installation of keyless security devices obstruct or adversely impact the manner in which residents of the residential building access it. 

To learn more about Bill No. S8036 click here. How do you see the balance being struck between security regulations and residents' rights? We want to know—comment below!

NEW LAW FOR NYS BUSINESSES: Adapting to New Credit Card Surcharge Regulations

Effective February 11, 2024, a new amendment to General Business Law Section 518 introduces significant changes for businesses regarding credit card surcharges. The key takeaway is that businesses can no longer add credit card processing fees as a separate charge for non-cash payments, even if disclosed. Instead, any surcharge must be included in the total grossed-up price displayed to customers prior to checkout.

Businesses have two main compliant options:

1. Two-Tier Pricing: Display two prices for each item with one including the surcharge for credit card payments and another for cash, checks, or debit payments.
2. Inclusive Pricing: Incorporate the credit card fee into all prices and offer a discount for non-credit card payments.

This change offers businesses an opportunity to demonstrate their commitment to fairness and transparency, potentially enhancing customer loyalty. Ensuring clear communication about pricing and payment methods is key to navigating these new requirements successfully.

Violations: If a business violates the amended General Business Law Section 518, there are significant consequences. Non-compliance can result in civil penalties of up to $500 for each violation. In more severe cases, a business could face criminal charges, leading to fines, imprisonment for up to one year, or both. It's crucial for businesses to adhere to these regulations to avoid legal repercussions and maintain a positive relationship with their customers.

To read Section 518 of New York State's General Business Law click here. To review New York State's Credit Card Compliance Guidance click here. New York State has also released an educational video which you can watch here.