If you have not read about Florida's Foreclosure ONLY Courts, which are run by Retired Judges, you can read all about it in a NY Times article by clicking here.

The article discusses many positives of the Florida Courts including the ambitious goal of reducing the foreclosure backlog by 62% within a year. Such a reduction is certainly something that we could use in the NY Court System, which is continuously being strained by the mortgage meltdown. Yet, the article also discusses a negative consequence that has emerged from using Retired Judges in specialized Courts. Defense attorneys are claiming that a presumption in favor of the banks is emerging where questionable claims with incorrect documentation are achieving auctions and evictions. I am not clear how these Courts cause such a presumption, but the claim is that a correlation has been noticed.

In contrast to Florida's system, NY, which has also tailored its Court System to the foreclosure crisis. NY has created a new judicial position, entitled Foreclosure Referee, to conduct Foreclosure Settlement Conferences. Such conferences are designed to modify mortgages and avoid adjudication. Unfortunately, many cases are not modified in these Foreclosure Settlement Conferences as many Bank Attorneys do not come to the conferences with any intention of making a deal without respect to the CPLR's requirement to negotiate in good faith. Therefore, NY cases are being sent back to the Supreme Court for adjudication. In this sense, NY has added a layer to our Court System while Florida has moved a large case load away from their cohort of Judges.

My feeling is that a combined approach would work best. Retaining the Foreclosure Settlement Conferences, but having Judges preside at the conferences and keep the case if adjudication proves necessary. In this sense, the Judge could form a prejudice against a party who did not comply with the CPLR by failing to make a good faith effort to settle.

To read CPLR 3408 and subsection (f)'s requirment of negotiating in good faith click here.

On August 31, 2010, Governor David Paterson signed into law multiple amendments to the state's real estate agency disclosure law. The amendments will take effect January 1, 2011 and will affect both sales and rentals in the residential sector, inclusive of coops and condos.

The key effect of the law is the requirement of a written agency disclosure form as opposed to verbal consent from clients. Additionally, the law will streamline the Dual Agency situation, where the same brokerage office represents the buyer and seller in a transaction, by permitting an advanced general consent to Dual Agency as opposed to requiring consent at a specific showing. 

In reviewing the Bill's justification section it becomes clear that the purpose of this legislation is to protect consumers in a Dual Agency Relationship where the same brokerage office represents both the buyer and seller in the same transaction and to streamline the process.

The new law can be found by clicking here.

Stay tuned to this blog for more information about these amendments and sample forms as they become available.

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.

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

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.