Notice of Pendency

A Notice of Pendency (Lis Pendens) can be had by merely filing a form with the county clerk of the county where the real estate identified in the notice exists. Nonetheless, a Lis Pendens is often discussed by real estate professionals as having the effect of labeling someone as a black sheep. We need to change this perception because a Defendant has little control of the fact of its existence. The key is that a Notice of Pendency does not require someone to go to Court prior to its existence. Consequently, there is no pre-filing judicial review and no requirement that the Plaintiff shows that his case has merit. Therefore, the fact that a Lis Pendens is filed means as little as nothing as far as an assessment of fault in a case.

Post-filing, the Defendant can move to have the notice cancelled under CPLR 6501.

Rule: Post-filing judicial review requires a showing that the judgment sought by the Plaintiff would "affect" the real estate in the Notice of Pendency. Yet, this review is limited to the pleadings (Complaint and Answer) of each party and does not address the underlying transaction. The key is that a direct relationship exists between the action and the Defendant's real estate.

Actions where a Notice of Pendency is always available:
1. Mortgage foreclosure action;
2. Partition action;
3. Specific performance action concerning a real estate transaction contract;
4. An action about title to property; and
5. An action to enforce easement rights.

Most people these days just associate a Notice of Pendency with a foreclosure action, but as you can see there are many other topics where it is applicable.

So, lets stop the belief that a Lis Pendens means someone is a deadbeat. There simply is no causation for this belief.

Misclassifying a Certificate - NY Times

In Sunday's real estate Q & A section, Jay Romano reported that a seller likely has no recourse against a seller where the seller misrepresented the status of a Certificate of Occupancy prior to closing. Mr. Romano's report was pursuant to the direction of Douglas F. Wasser, a Manhattan real estate lawyer. Yet, this is not necessarily true. In fact, the case of Scharf v. Tiegerman completely holds otherwise and states that where the seller misrepresents the property in a fraudulent manner, liability follows.

Moreover, my law firm has previously sued attorneys for malpractice in representing the purchaser in such a situation without performing due diligence and advising the purchaser of the actual conditions. To be clear, a Certificate of Occupancy is a municipal record that it is safe to occupy the house in the listed manner. A purchaser with an intent to occupy the house in a manner must be advised if their intended occupancy is legal or not. If an attorney to a real estate transaction doesn't provide this advise, they have committed malpractice.

Hon. Spinner does it again - The Peoples' Champion

In a very recent foreclosure case, Justice Spinner awarded over $150,000 to a Long Island borrower where the lender wrongfully entered the house on 2 occasions under a false claim that it had a right to do so.

See Wells Fargo v. Tyson

Thank you Bethpage Federal Credit Union

I met with Karen Laurence today from Bethpage and she was so wonderful in welcoming the Real Estate School to her bank. Karen and I will be offering a class on mortgages in the near future, but until than, the bank will be hosting a classes on Home Inspections and Short Sales. To attend, go to www.liebatlaw.com and register today.

Reality of the Rental Roadblock

The real estate section of the Sunday times today discusses a trend of potential sellers renting out homes after not receiving their original asking price for the property. The article states that times are changing and these sellers/new landlords are finally receiving the asking prices, while having a tenant in the home - further preventing the purchaser from completing a sale. The article implies that these sellers/new landlords are being blindsided by tenants who are uncooperative with showing the home for purchasers and getting out of the home upon a sale. Yet, the article is misinforming the reader of what is actually happening. We should not feel bad for these sellers / landlords because of their current plight. Instead, we should recognize that when you agree to a contract (a lease), you are bound by its terms. If the sellers / landlords want to continue listing their property while renting it out - they should have strong terms in the leases that permits such action. If they do not have these terms in the agreement - they should have proper expectations that they are now landlords abiding by the terms of the lease signed with the tenants. This seems to be a recurring theme I see over and over - most of the time the seller's dont even understand the contract/lease they had their tenants sign. It's also problematic in real estate that everyone wants to sell for the absolute most that they can possibly get all of the time as if its some sort of competition. Yes, its good to make a lot of money in a sale, but seeking the absolute best often creates subsequent risks, preventing the optimal profit the seller was originally looking for. Stop second guessing, it's simply not predictable to know exactly what the sales price will be. Instead, you should make a decision and stick with it without looking back. Have realistic expectations. Consult with a professional to understand your responsibilities and liabilities. If you decided to rent because you needed to cover the short-term carrying costs of the home as a condition of not selling in hopes of a better market a year or two later, now you must wait that year or two. Its not 'woe is me' because 6 months later the markets good and now you are stuck. The key is to get good advise, not sign contracts that you don't understand, and realize that you can't control the market. Good luck.

Real Estate Tip of the Day

A house that you live in is not an asset, no matter who tells you otherwise, but instead a liability. It may be a good liability to have, but when more money is going out than coming in, its a liability. It can only become an asset through appreciation, which is speculative at best and should not be relied upon as part of your purchasing decision if you are a prudent investor. Mindset changes everything, with realistic expectations, you can manage your life.