Friday, August 27, 2010
Title Sales Tax
Effective September 1, 2010, title related services inclusive of all relevant searches, which are not used in the course of preparing a title insurance policy will be subject to New York State and Local Sales and Compensation Use taxes. Now it will be even more expensive to buy a house in New York State. Its important for agents and attorneys to understand this tax and carefully explain it to their clients. A great source for more information on the tax can be found by clicking here.
Wednesday, August 25, 2010
Thursday 8.26 Course Opening in Center Moriches
We have a cancelation in tomorrow's Discovering The Home Inspection Class in Center Moriches. If you would like to enroll, register at our website. 3 Continuing Education Credits.
http://www.liebatlaw.com/realestateschool/register/inspection
http://www.liebatlaw.com/realestateschool/register/inspection
Thursday, August 19, 2010
Nonconforming Use
Last night we had a great class at Lieb Cellars in Mattituck on Commercial Real Estate. While discussing Land Use, the class began to ask questions about Nonconforming Use exemptions, which are frequent on the North Fork. To address these questions I explained that Land Use is regulated on the local level and that the class should see the Riverhead Town Code or the Southold Town Code to get their answers. You can locate the Codes by clicking here.
To illustrate some of the facts on Nonconforming Use, I will explain the topic with reference to the Riverhead Town Code.With respect to Riverhead, the Town Code defines Nonconforming Use as "Any building, structure or land lawfully occupied by a use that does not conform to the regulations of the use district in which it is situated." Remember, that a district designates an area of land where certain uses and structures are permitted. Therefore, a Nonconforming Use is a use that is not allowed within the district where the land is located. Additionally, in Riverhead, the Town Code states that "Any building, structure or use existing on the effective date of this chapter [6-29-1976], or any amendment thereto, may be continued on the same lot held in single and separate ownership, although such building, structure or use does not thereafter conform to the regulations of the district in which it is located". As a result, the Code permits uses to be grandfathered from a period before they became impermissible under the Code.
I believe that the confusion last night stemmed from our class misunderstanding the difference between obtaining a variance, which is a deviation from the Town Code through application and approval, and having a Nonconforming Use, which is a particularized exception from the Town Code. To be clear, a variance is available to any landowner, who wishes to apply for an exception to the strict confines of the Code, but such an application must be approved by the Zoning Board to be permissible. In contrast, a Nonconforming Use is an exception to the Town Code, which does not require an application to the Zoning Board because the elements required to be met to qualify for such a use are clearly identified within the Code.
Of additional note, a student in the class kept referencing to a 3 year period where a Nonconforming Use would be lost for non-use. This was incorrect with respect to the Town of Riverhead. Instead, the Code states "No nonconforming use may be reestablished where such nonconforming use has been discontinued for a period of one year". Therefore, the correct period is 1 year. Furthermore, I mentioned that a Nonconforming Use can be lost if the building is destroyed by fire. Again, this should be qualified because the Code states that "Nothing in this chapter shall prevent the complete restoration within one year of a building destroyed by accidental cause". Therefore, if the building is rebuilt within 1 year the Nonconforming Use remains.
I hope that the reader is now clear on the topic of Nonconforming Use and how it differs from a Variance.
To illustrate some of the facts on Nonconforming Use, I will explain the topic with reference to the Riverhead Town Code.With respect to Riverhead, the Town Code defines Nonconforming Use as "Any building, structure or land lawfully occupied by a use that does not conform to the regulations of the use district in which it is situated." Remember, that a district designates an area of land where certain uses and structures are permitted. Therefore, a Nonconforming Use is a use that is not allowed within the district where the land is located. Additionally, in Riverhead, the Town Code states that "Any building, structure or use existing on the effective date of this chapter [6-29-1976], or any amendment thereto, may be continued on the same lot held in single and separate ownership, although such building, structure or use does not thereafter conform to the regulations of the district in which it is located". As a result, the Code permits uses to be grandfathered from a period before they became impermissible under the Code.
I believe that the confusion last night stemmed from our class misunderstanding the difference between obtaining a variance, which is a deviation from the Town Code through application and approval, and having a Nonconforming Use, which is a particularized exception from the Town Code. To be clear, a variance is available to any landowner, who wishes to apply for an exception to the strict confines of the Code, but such an application must be approved by the Zoning Board to be permissible. In contrast, a Nonconforming Use is an exception to the Town Code, which does not require an application to the Zoning Board because the elements required to be met to qualify for such a use are clearly identified within the Code.
Of additional note, a student in the class kept referencing to a 3 year period where a Nonconforming Use would be lost for non-use. This was incorrect with respect to the Town of Riverhead. Instead, the Code states "No nonconforming use may be reestablished where such nonconforming use has been discontinued for a period of one year". Therefore, the correct period is 1 year. Furthermore, I mentioned that a Nonconforming Use can be lost if the building is destroyed by fire. Again, this should be qualified because the Code states that "Nothing in this chapter shall prevent the complete restoration within one year of a building destroyed by accidental cause". Therefore, if the building is rebuilt within 1 year the Nonconforming Use remains.
I hope that the reader is now clear on the topic of Nonconforming Use and how it differs from a Variance.
Wednesday, August 18, 2010
Mattituck - Opening Tonight - Commercial Real Estate Class
We have a new opening for tonight's Commercial Real Estate Class at Lieb Family Cellars in Mattituck!
The event is scheduled to begin at 5:15pm, and we ask you to arrive 15 minutes early to sign in. At that time, Dinner will be available, thanks to Rolling in Dough Pizza of Greenport, and Lieb Cellars will be hosting a complimentary tasting.
Http://www.liebatlaw.com/realestateschool/register/commercial
The event is scheduled to begin at 5:15pm, and we ask you to arrive 15 minutes early to sign in. At that time, Dinner will be available, thanks to Rolling in Dough Pizza of Greenport, and Lieb Cellars will be hosting a complimentary tasting.
Http://www.liebatlaw.com/realestateschool/register/commercial
Friday, August 13, 2010
Saturday night fever - lets talk credit score
As promised at last night's class, we are providing a link to The Fair Credit Reporting Act here. As I stated at the class last night the best place to learn what you can do with your credit is to read the law. In the coming weeks, I will be providing incites on this law, but read up first.
Monday, August 09, 2010
Which attorney to use is the customers choice
I had a consult today with a lovely couple who were contemplating a foreclosure defense because when they had previously tried to sell their house with a real estate company in a short sale where the real estate agent required them to use a specific attorney and they felt very uncomfortable moving forward with the agent under this condition. I happened to know the agent so I gave him a ring and told him that this was not the way to do business. In full disclosure, I was not the attorney that he "recommended". The agent agreed to release the clients from his agency contract with them following my conversation. Yet, I found this to be a great teaching moment for all the agents that read this blog. You can recommend, not require, use of a specific attorney. Moreover, the attorney works for the customer, not you. I know that you often feel ownership over the real estate transaction and your wallet depends on a quick smooth closing, but you cannot put your interests over your customer's. In fact, the department of state has made the following finding in an ethics complaint against a real estate agent who required use of his attorney.
VII- When the Williams expressed an interest in using an attorney of their own choosing who had expressed skepticism regarding the transactions which Mr. Erez had proposed Mr. Erez told them that they would have to use an attorney of his choosing, Peter Goldberg. In so doing he clearly placed his interests above those of the Williams, his principals, in violation of his fiduciary duties. It appears that Mr. Erez acted as he did because, having dealt with Mr. Goldberg previously, he expected that Mr. Goldberg would, as he did, facilitate the sale of the Mofat Street property. His conduct was a demonstration of gross untrustworthiness.
To read the full decision, click here. While the matter was appealed, the appeal does not discuss this issue and I find it difficult to argue with the department's findings because a real estate agent has a fiduciary duty to their clients to use the utmost good faith and fair dealing when facilitating that client's transaction.
VII- When the Williams expressed an interest in using an attorney of their own choosing who had expressed skepticism regarding the transactions which Mr. Erez had proposed Mr. Erez told them that they would have to use an attorney of his choosing, Peter Goldberg. In so doing he clearly placed his interests above those of the Williams, his principals, in violation of his fiduciary duties. It appears that Mr. Erez acted as he did because, having dealt with Mr. Goldberg previously, he expected that Mr. Goldberg would, as he did, facilitate the sale of the Mofat Street property. His conduct was a demonstration of gross untrustworthiness.
To read the full decision, click here. While the matter was appealed, the appeal does not discuss this issue and I find it difficult to argue with the department's findings because a real estate agent has a fiduciary duty to their clients to use the utmost good faith and fair dealing when facilitating that client's transaction.
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