“The duty of the broker consisted in bringing the minds of the vendor and vendee to an agreement. He could do no more. He had no power to execute a contract, to pay the money for the one side, to convey the land on the part of the other, or to compel performance of either of these duties.”
A recent case decided in Tompkins County ruled that local zoning amendments banning all activities relating to hydrofracking were not preempted by the Oil, Gas, and Solution Mining Law (OGSML). So, municipalities can ban fracking in their territories.
In the Tompkins County case, the Plaintiff, a company engaging in exploration of land for hydrofracking, brought an action against the Town of Dryden attacking their zoning amendment which banned hydrofracking. The Court determined that the State’s OGSML did not prevent the Town from creating local zoning ordinances banning hydrofracking.
This decision is particularly important because many NY municipalities have been amending their zoning regulations in response to their resident’s concerns about hydrofracking.
Remember to always keep yourself apprised of local zoning amendments in order to ensure the latest developments in your municipality because laws and regulations in real estate may change daily.
For further information about the case, see Anschutz Exploration Corporation v. Town of Dryden, 2012 WL 556172, Slip Op. 22037 (2012).
As reported on this blog in October of 2011, the Steven J. Baum Law Firm reached a settlement with the United States Attorney for the Southern District of New York whereby it agreed to pay a two (2) million dollar fine and amend its foreclosure practices. Earlier this week, a settlement was reached with the State’s Attorney General’s Office where the firm’s managing partners, Steven J. Baum and Brian Kumeiga, agreed not to handle any foreclosure cases for lenders or servicers in New York State courts for two (2) years and pay a four (4) million dollar fine. Pillar Processing, a document processing entity created by the firm, is also on the hook for the fine. The suit alleged that the Steven J. Baum Law Firm did not take the necessary steps to ensure the accuracy of the legal papers filed in its foreclosure complaints and bankruptcy proceedings. Per the terms of the settlement agreement the firm neither admitted nor denied any findings of wrongdoing in the case.
As part of the settlement half of the four (4) million dollar fine will be allocated to a fund that helps New York residents in foreclosure. Although the firm is now defunct, it remains involved in litigation with other borrowers who believe their rights were compromised by the firm’s practices. We will continue to update you on the outcome of these cases.
Following up on a previous blog, the New York State Attorney General’s Office filed a complaint on February 3, 2012 against the Mortgage Electronic Registration System (“MERS”) and several large investment banks alleging, among other things, that the institutions engaged in deceptive practices in foreclosure actions throughout the state through their usage of MERS; including initiating said actions without the requisite legal authority. A little more than a month later, JP Morgan, Bank of America, Wells Fargo and Citigroup agreed to pay $5.9 million, and Ally Financial agreed to pay $1.25, to partially settle the suit. As per the terms of the settlement, none of the above banks admitted to engaging in deceptive practices, nor did they deny that they did not.
We will continue to monitor and update you accordingly, as the New York State Attorney General’s Office will continue its case in an effort to obtain damages related to the banks' use of MERS.
Real Estate Broker and Salesperson violations are now published by the New York State Department of State and can be found by a search on their website. CLICK HERE for access.
In the past, licensing settlements, contained in consent orders, were kept private. Previously available for public viewing were decisions on adjudicated licensing issues, pursuant to a “hearing” with an administrative law judge on the same. Now, consent orders are also available for viewing, which are settlements between the broker/agent and the State. Yet, the initial complaints and other documents are still kept private and are unavailable to the public by way of an online search.
This newsworthy happening may create a benefit to New York State Brokers and Salespersons. The now-public consent orders make many more prototypes of licensing violations available. Specifically, brokers and agents should use the same to their advantage by reviewing such decisions and consent orders to enable them to know “what not to do” in practice.
As discussed below, commingling security deposits with personal funds can have great ramifications to both the tenant and landlord in actions involving disputes over the same.
In Band v. Peters, the tenant entered into a residential lease with the landlord and timely paid both the security and utility deposits pursuant to the terms of the lease. After vacating the subject premises according to the agreed term, the landlord did not return the security and utility deposits. The tenant then brought an action against the landlord alleging, among other claims, that the landlord commingled both deposits with his personal funds. Further, and in violation of the lease and General Obligations Law (“GOL”) §7-103, the tenant alleged that the landlord failed to notify him of the name and address of the bank into which both deposits were made pursuant to the terms of the lease. Additionally, the lease provided for the return of the security deposit within forty-five (45) days following the termination of the lease.
The landlord disputed the above claims and averred that the tenant breached the terms of the lease and therefore, forfeited the return of his security deposit. The tenant countered that even if the Court found that he breached the terms of the lease, there were no deposits that could be forfeited because the landlord commingled the deposits prior to any alleged breach.
The Court found that the landlord did in fact deposit the security and utility deposits into his personal account, rather than holding both deposits in trust for the tenant pursuant to GOL §7-103. Consequently, the Court ordered the immediate return of both deposits with interest, plus attorney’s fees (pursuant to the terms of the lease).
Landlords and tenants should be aware of the above as the two (2) relatively “minor” errors committed by the landlord, which no doubt will continue to occur in the ordinary course of business, can be of great significance to both parties.