LIEB BLOG

Legal Analysts

Monday, August 18, 2014

FREE public seminar - HOMEOWNERS' INSURANCE


The Nassau County Bar Association and the Nassau Academy of Law Invite You to Attend

Protecting Home & Hearth
Home Insurance Everyone Needs

Monday, September 15, 6:30 p.m.

Nassau County Bar Association (Mineola)


Speakers:
Andrew Lerner, CIC, The Lerner Agency
Charles Licht, Public Adjuster
Michael A. Markowitz, Seminar Chair

To Register:
516-747-4070 or email ckatz@nassaubar.org



Friday, August 15, 2014

Andrew Lieb discusses Broker Commissions today on Real Life WPPB 88.3FM

Andrew Lieb Shares Real Estate Tips on 88.3FM today at 5:50pm
Tune into 88.3FM (WPPB Peconic Broadcasting) today (8/15) for Real Life with John Cristopher from Brown Harris Stevens.

Today's Line Up of Guests:
  • 5:30pmAspasia Comnas, Executive Managing Director of Brown Harris Stevens discusses the community spirit that exists in the Hamptons and her participation in Escuela de Samba Boom.
  • 5:40pmJesse Matsuoka, owner of Sen restaurant in Sag Harbor talks about the Hamptons but also his time in Japan and witnessing the greatest Sumo wrestling match of the century.
  • 5:50pmAndrew Lieb, Esq, owner of Lieb at Law and Lieb School discusses broker commissions and how sellers can be responsible for owing more than one commission. 
You can listen live on the website too:

Wednesday, August 13, 2014

Lieb at Law was Nominated for Best Law Firm on Dan's Papers Best of the Best 2014

Please Help Us Win Best Law Firm!




Vote for us by clicking here


We appreciate your time in voting for Lieb!

Sincerely,


Thursday, August 07, 2014

New Pressure for Lenders to Negotiate in Good Faith


If you are a struggling homeowner and have sought relief via a loan modification, there may be new pressure on lenders to negotiate a modification. Last week, New York’s Appellate Division, Second Department, ruled in US Bank N.A. v  Sarmiento that Wells Fargo, a well-known lender, could not collect interest or fees on a loan that had accrued while a borrower, Sarmiento, pursued a loan modification. Sarmiento attended 18 settlement conferences and remained persistent in obtaining a loan modification yet the decision indicates that Wells “delayed and prevented any possible resolution of the action.” Wells is cited for various delays and miscommunications which when considered wholly, led to the determination by the court that Wells failed to negotiate in good faith. This court decision yielded a long-awaited definition of “good faith” with regards to negotiations in foreclosure conferences.  The court concluded that Wells’ conduct indicates a “disregard for the settlement negotiation process” which increased the balance on Sarmiento’s loan.

This decision gives hope to borrowers frustrated with the often drawn-out process of obtaining a loan modification. If a lender loses documents, repeatedly requests the same information, fails to review the application in a timely manner, denies an application without adequate grounds or deliberately or recklessly delays the process in any way, a borrower now has the option to demonstrate the lender’s failure to negotiate in good faith. This could translate to thousands of dollars lost in interest and legal fees for lenders.


Hopefully, this will put pressure on lenders to remain timely and organized in their evaluation of a borrower’s loan modification application for if they don’t comply with good faith guidelines, they could be at risk to lose a great deal of money. But remember, “good faith” is a double edged sword, as borrowers must also negotiate in good faith by putting forth a purposeful and honest effort at a settlement conference to reach a resolution.

Tuesday, August 05, 2014

Developing Air Rights

Read this terrific article - Want to buy some air? Some cities have plenty to sell - to appease your interest in air rights and development.

2 Takeaways:
a) Developing a deck (the platform in the air where development happens) to build upon is quite expensive; &
b) Financing is limited as there are minimal real property rights associated with air rights, which can be foreclosed upon (collateral).

Based upon the expense and lack of collateral, perhaps development for air rights is ripe for crowdfunding to get the job done. In crowdfunding, accredited investors (net worth of more than $1 million or have earned $200,000 in each of the previous 2 years) can provide the requisite funding in consideration of equity stakes in the development company, to get the project funded, built, and ready for tenants.



Friday, July 25, 2014

10 Secrets to Closing the Deal

Highlights from Andrew Lieb's latest article featured in Dan's Papers...10 Secrets to Closing the Deal

  1. Confirming Deeded Ownership
  2. Setting the Listing Price
  3. Staging and Active Concealment
  4. Proactive Home Inspection
  5. Broker's Loyalty
  6. Budgeting for Transaction Costs
  7. Certificate of Occupancy
  8. Survey and Boundary Line
  9. Avoiding Capital Gains Tax
  10. Clearing Liens
Read the full article in Dan's Papers 

Wednesday, July 23, 2014

Real Estate Agents Forbidden to Use Air Drones for Listings



If you are a licensed real estate agent and have ever used or are still using air drones to take photographs of properties to improve your listings, stop now and do not do so again. The Department of Transportation’s Federal Aviation Administration has recently provided clarification on the FAA Modernization and Reform Act of 2012, prohibiting the commercial use of model aircraft.  

Under this Act, a model aircraft is defined as an unmanned aircraft that is flown recreationally within visual sight of the aircraft operator. There are numerous statutory requirements that aircraft operators must adhere to when flying model aircraft, such as the weight of the aircraft and where and when the aircraft can be flown. However, the most important statutory requirement for real estate agents is that the aircraft must be used only for recreational purposes.

Millions of Americans have joined aircraft clubs in order to build and fly model aircraft and have used model aircraft to take aerial photographs and video of their communities, gardens, and farms. This is allowed. If you are using a model aircraft to take photographs for pleasure and do not intend to use or sell the photographs for your business, then you do not violate any statutes. Real estate agents, however, use model aircraft for commercial purposes, violating the statutory requirement of recreational use. For example, many real estate agents use model aircraft to take aerial shots of properties for their listings, especially if the properties are large and have a high sales price. With high commissions at stake, real estate agents are willing to put forth the extra effort to take these aerial photographs and improve their listings to catch a worthy buyer’s eye. It is important to note that if a real estate agent is caught using model aircraft to take photographs of properties for listings, the Federal Aviation Administration, under this Act, may fine this real estate agent (or exact punishment in any other way it deems necessary) for the violation of this statutory requirement.

Since the Federal Aviation Administration has the power of enforcement, it is wise to avoid using model aircraft for commercial purposes at all costs.

Stay tuned for an update on what kind of fines the FAA can exact on violators.

Agency Disclosure - Free CE on 8/14 in Hauppauge


Instructor: Andrew Lieb

Sponsor: Citibank

Credits: 3

Cost: Free

Every broker must send their agents to this continuing education course to learn Agency Disclosure.

This course will answer the maddening questions that are always in the back of every real estate agent’s mind in brokerage: How do I fill out the form? Who do I work for? How can I get both sides of the deal? Can the Department of State fine me if I mess this up? Why does my broker care so much? Does this affect my commission? How about my license?

You will learn the whole enchilada about agency from disclosure in the presence of another broker to disclosure by electronic means to disclosure at an open house to disclosure when your client / customer refuses to sign the form, and so much more. You will be familiarized with the applicable statute, the relevant regulation, court cases that decipher your duties and DOS Administrative Decisions that fine violators. This course even includes a skills component where you will learn how to fill out the Agency Disclosure Form in every possible scenario. Finally, you will get it right. It’s mandatory to practice Agency Disclosure and after taking this course, you will.

Seats fill up quickly.  Click Here To Enroll



Tuesday, July 08, 2014

Hamptons Real Estate by the Numbers



The Great Recession is finally showing signs of letting up, but this is old news to real estate agents in the Hamptons where the housing market recovered long before Main Street felt any relief. In 2013, the Hamptons and North Fork of Long Island saw approximately 2,600 real estate transactions – a 70% increase over 2009 when the Great Recession was at its lowest point. That number is poised to grow this year. With that in mind, let’s take a look at some of the eye popping numbers from the Hamptons this year.

The $147,000,000 Estate.  This summer, Barry Rothstein, founder of the hedge fund Jana Partners, purchased an 18 acre beachfront estate in EastHampton for a reported $147,000,000, making it the most expensive single family home ever sold in the United States. The average home price in Suffolk County is approximately $347,200, meaning Mr. Rothstein could have purchased 423 homes for the price of his Hamptons estate.

High End Homes.  According to Douglas Elliman Real Estate’s Q1 2014 market report, the average sales price in the Hamptons checks in at $1.7 million.  To show how skewed that number is by high end luxury sales, the median sales price is $880,000 – roughly half the average.  According to hreo.com, the Hamptons multiple listing service, 282 homes are listed for sale at $10,000,000 or more, a bargain compared to the $147,000,000 Rothstein Estate.  In the 1st Quarter of 2014 alone, there were 37 sales over $5,000,000. Nationwide, purchases costing $1,000,000 or more represent 2% of all home sales. Of the homes listed on hreo.com, more than 67% check in at $1,000,000 or more.

“Average” Homes Disappearing.  Hreo.com searches reveal that there are only 183 homes for sale in the Hamptons region, which stretches from Remsenberg to Montauk, listed at $350,000 or less, the average home price in Suffolk County. Of the 5,330 listings on hreo.com, only 3% are at or below the Suffolk County average. For those of you keeping track, there are more homes for sale over $10,000,000 in the Hamptons than there are homes under $350,000. Meanwhile, nationwide, the median home price is $188,900. At that budget, there are 27 homes for sale in the Hamptons, all of which are 1 bedroom summer retreats. Even mobile homes in the Hamptons come at a premium, with this mobile home checking in at a cool $199,000

Summer Rentals. According to some estimates, the population of the Hamptons increases by 500% from winter to summer. As a popular vacation spot, it should come as no surprise that many Hamptonites choose to rent a summer home instead of buying. What may shock you, however, is the price of some of these rentals. With the rental season already well underway, there are still 186 homes for rent in the Hamptons on hreo.com at a cost of over $350,000 for the summer, meaning there are more Hamptons summer rentals still available over the Suffolk County average home price than there are homes for sale at or below the Suffolk County average.

When looking to make your summer escape to the Hamptons, remember to bring your wallet with your sunscreen!

Sunday, July 06, 2014

ELIGIBILITY OF FLOOD RISK REDUCTION MEASURES UNDER THE HAZARD MITIGATION ASSISTANCE (HMA) PROGRAMS

On June 18, 2014, the Federal Emergency Management Agency (FEMA), which is an agency of the United States Department of Homeland Security that coordinates the response to a disaster that has occurred in the United States, announced a new policy entitled “Eligibility of Flood Risk Reduction Measures under the Hazard Mitigation Assistance (HMA) Programs.” This new policy, which applies to Federal, State, tribal, and local authorities involved in the administration of HMA Programs, describes a change in FEMA’s HMA Program guidance concerning the types of physical flood risk reduction projects FEMA may consider for funding under its HMA Programs.

The HMA Program authorities are provided by the National Flood Insurance Act of 1968, as amended, to use assistance made available from the National Flood Mitigation Fund for carrying out and planning activities designed to reduce the risk of flood damage to structures covered under contracts for flood insurance. FEMA’s HMA Programs include the Pre-Disaster Mitigation Program (PDM), a Hazard Mitigation Grant Program (HMGP), and the Flood Mitigation Assistance (FMA) Program. The HMGP and the PDM Programs provide assistance to State, tribal, and local governments for hazard mitigation activities that are cost-effective and substantially reduce the risk of future losses from major disasters. These HMA Programs are one way FEMA supports mitigation against flooding and other disasters.

Prior to this new FEMA policy, the 2013 HMA Unified Guidance stated that only “minor localized flood reduction projects” are eligible for funding under the FMA, PDM, and HMGP. Further, the guidance stated that “major flood control projects” related to the construction, demolition, or repair of dams, levees, dikes, floodwalls, seawalls, breakwaters, groins, jetties, and erosion projects related to the beach nourishment or re-nourishment, are ineligible activities under all programs (emphasis added). However, FEMA has now revised the HMA Program guidance after a review of relevant legislation, regulations, and policy to allow for the construction, demolition, or mitigation of dams, dikes, levees, floodwalls, seawalls, groins, jetties, breakwaters, and erosion projects related to beach nourishment or re-nourishment under the HMGP and PDM Programs.

Under all HMA Programs, approval of an eligible project must not result in a Duplication of Programs (DOP) with other federal agencies. This doctrine of Duplication of Programs prohibits FEMA, or any other federal agency, from using its assistance to fund projects or programs if funding for similar activities is available under a more specific federal authority, unless there is an extraordinary threat to lives, public health or safety, or unimproved real property. The DOP issue is of particular concern in determining eligibility for flood risk reduction projects because other federal agencies may be funding similar flood risk reduction measures under more specific authorities. This new FEMA policy addresses the DOP issue by speaking about how the DOP may affect the eligibility of HMA flood risk reduction projects and how applicants may screen projects for potential duplication prior to application.

HMA Programs are established by Sections 203(PDM) and 404 (HMGP) of the Robert T. Stafford Disaster and Emergency Assistance Act, 42 U.S.C §§5133, 5170c-(b)(2) and by Section 1366 (FMA) of the National Flood Insurance Act of 1968 (NFIA), as amended by the Biggert-Waters Flood Insurance Reform Act of 2012, 42 U.S.C §4104c. The HMA Programs are also governed by Title 44 Code of Federal Regulations (C.F.R.) Part 9, Part 10, Part 13, Part 59, Part 65, Part 79 (FMA), Part 80, and Part 206, Subpart N (HMGP).


For more information on FEMA’s Eligibility of Flood Risk Reduction Measures under the Hazard Mitigation Assistance (HMA) Programs Policy, visit http://www.fema/gov/hazard-mitigation-assistance-policy.  

Thursday, July 03, 2014

Towns Can Now Use Local Zoning Laws to Ban Fracking

There are many towns on Long Island that pride themselves on their quaint, small-town characteristics and their colonial history. Residents of these towns often worry that their communities will be tarnished or disrupted by an excavation site in their backyards.

However, New York’s highest court has recently upheld the power of local governance to regulate businesses in its borders. According to this ruling, towns have the right to ban fracking by using local zoning ordinances if fracking disrupts the character and integrity of these communities.

Fracking is a method of hydraulic extraction. High-pressure fluid is injected into cracks in the earth to release a higher quantity of oil and gas. There is a huge movement in the United States against the use of fracking as it has numerous environmental risks, such as groundwater contamination and earth tremor causation.

The towns Dryden and Middlefield, both located in upstate New York, are rural communities that rely heavily on agriculture and small town tourism. In the mid-2000s, two companies, Norse Energy Corp. and Cooperstown Holstein Corp., had tried to develop and extract natural gas in the areas. Responding to rigorous protests, the Town Boards of Dryden and Middlefield banned the use of fracking due to the environmental and health implications involved in the controversial method. Nonetheless, the two companies maintained that state law was on their side and that they had the right to develop in the areas.

The New York Court of Appeals has upheld the decisions of the lower courts by ruling in favor of the towns. Pursuant to the Municipal Home Rule Law, by banning fracking, both towns were exercising their local governance rights in the preservation of the character, welfare, and aesthetics of their communities. If fracking threatens the integrity of a town, that town should be able to reject it based on the Home Rule Law.

Interestingly, this ruling was not based on any scientific conclusion that fracking is harmful to the environment. Oil companies that want to pursue fracking may do so in areas where fracking is not restricted or banned by local ordinances. Instead, the decision discussed the towns’ objection to fracking on the ground that it would cause heavy traffic congestion in the towns and industrialize the small-town, rural areas.

Also, this decision is of note as it comes out the exact opposite of the Court’s February 14, 2013 decision in Sunrise Check Cashing and Payroll Services v. Town of Hempstead, in which the Court declared that the Town of Hempstead could not ban check cashing establishments from the area because its zoning ordinance did not demonstrate that the business had a negative impact on the community. Consequently, reading these decisions together yields an understanding that a town can ban businesses such as adult entertainment and fracking for having negative impacts on the community, but cannot ban check cashing and fast food businesses as there is no objective negative impact. So, the Sunrise case reminds us that this latest decision on fracking is not to be read broadly in garnering an understanding that a town has free rein to prevent any business it dislikes from existing in its borders. Instead, a town must have a legitimate objective belief that the subject business negatively impacts the community, beyond conjecture, in order to block it from the Town’s jurisdiction.

This ruling is a victory for local governance, granting towns the power to preserve their character and integrity. It did not address the environmental impacts of fracking in itself, and we must look for future cases in order to obtain clarification on that issue. 

The Home Affordable Modification Program has been Extended

If you are a struggling homeowner and have defaulted or are at risk of default on your mortgage loan, an application for the Home Affordable Modification Program (HAMP) may be your best chance of obtaining an affordable loan modification.

Previously set to expire in December 2015, the Home Affordable Modification Program has recently been extended by the Obama Administration through December 2016. This federal loan modification program has been successful in providing reductions in monthly mortgage payments for millions of homeowners nationwide. Unlike Lender-based modifications, this program has two tiers, one of which requires a debt-to-income of 31% in its modification terms and another which requires a 10% reduction in monthly mortgage payments. If a homeowner is not eligible for Tier 1, then he or she will be reviewed for Tier 2, thus giving homeowners two chances to obtain lower, affordable monthly mortgage payments in their application for HAMP.

Oftentimes, Lenders that have their own loan modifications will only add the arrears to the principal balance without changing any other terms of the loan, thus creating monthly mortgage payments that are, in fact, higher than the original payments. Struggling homeowners often cannot accept a modification with higher payments because their hardships are long term or even permanent.

HAMP, however, requires affordable mortgage payments as part of its program and now will continue through the remaining term of the Obama Administration.

When it's Family, Choose Your Tenants Wisely

Wednesday, July 02, 2014

Real Estate Broker Record Retention - Proposed Regulatory Change

Did you know that there are laws about keeping real estate brokerage records?



Currently, the applicable law reads:

§175.23 Records of transactions to be maintained 
(a) Each licensed broker shall keep and maintain for a period of three years, records of each transaction effected through his office concerning the sale or mortgage of one- to four-family dwellings. Such
records shall contain the names and addresses of the seller, the buyer, mortgagee, if any, the purchase price and resale price, if any, amount of deposit paid on contract, amount of commission paid to broker or gross 
profit realized by the broker if purchased by him for resale, expenses of procuring the mortgage loan, if any, the net commission or net profit realized by the broker showing the disposition of all payments made by 
the broker. In lieu thereof each broker shall keep and maintain, in connection with each such transaction a copy of (1) contract of sale, (2) commission agreement, (3) closing statement, (4) statement showing 
disposition of proceeds of mortgage loan.  

(b) Each licensed broker engaged in the business of soliciting and granting mortgage loans to purchasers of one to four family dwellings shall keep and maintain for a period of three years, a record of the name 
of the applicant, the amount of the mortgage loan, the closing statement with the disposition of the mortgage proceeds, a copy of the verification of employment and financial status of the applicant, a copy of the inspection and compliance report with the Baker Law requirements of FHA with the name of the inspector. Such records shall be available to the Department of State at all times upon request.

----

However, much of the currently applicable law makes no sense as often a broker does not have a contract of sale in his / her possession and often the broker keeps all records electronically. 

Now, there is a proposal to change the law to reflect reality and the new law would read as follows (underlines being additions to the law):

§175.23 Records of transactions to be maintained 
(a) Each licensed broker shall keep and maintain for a period of three years, paper and/or electronic records of each transaction effected through his or her office concerning the sale [or mortgage] of one- to four-family dwellings. In some transactions, the broker may not be provided a copy of the document required.  In such instances, the broker will not be found to have violated this regulation if said document is not kept and maintained. Records to be kept and maintained shall contain:

 (1) the names and addresses of the seller[,] and the buyer, [mortgagee, if any,] (2) the broker prepared purchase contract or binder, or if the purchase contract is not prepared by the broker, then the purchase price [and resale price, if any,] and the amount of deposit (if collected by broker) [paid on contract], (3) the amount of commission paid to broker, (4) [or g]the gross profit realized by the broker if purchased by him or her for resale, [expenses of procuring the mortgage loan, if any, the net commission or net profit realized by the broker showing the disposition of all payments made by the broker. In lieu thereof each broker shall keep and maintain, in connection with each such transaction a copy of (1) contract of sale, (2) commission agreement, (3) closing statement, (4) statement showing disposition of proceeds of mortgage loan.] (5) any document required under Article 12-A of the Real Property Law and (6) the listing agreement or commission agreement or buyer-broker agreement.  
[(b) Each licensed broker engaged in the business of soliciting and granting mortgage loans to purchasers of one to four family dwellings shall keep and maintain for a period of three years, a record of the name of the applicant, the amount of the mortgage loan, the closing statement with the disposition of the mortgage proceeds, a copy of the verification of employment and financial status of the applicant, a copy of the inspection and compliance report with the Baker Law requirements of FHA with the name of the inspector. Such records shall be available to the Department of State at all times upon request.]

Notate the addition of the sentence "any document required under Article 12-A of the Real Property Law" at the end of the second paragraph. This is a catchall that includes such items as an Agency Disclosure Form and any other document later added to the law.

So, keep an eye on the DOS's Regulatory Activity page to determine when this Recent Proposal will become a Recent Adoption and hence, applicable law, or just keep an eye on the Lieb Blog for simple updates when real estate events happen. 

Tuesday, July 01, 2014

2014 College Graduates - Take a Year Off Before Law School

Join a thriving law firm that leads our profession through advocacy and advice supported by cutting-edge technology and know-how. This exciting opportunity is for a 2014 college graduate looking for valuable office and legal experience before heading to law school. You will be exposed to real estate litigation, learn the court system and assist in cases from real estate brokerage through landlord / tenant, premises liability, personal injury and more. You will manage the firm's foreclosure defense practice by pursuing loss mitigation alternatives for our clients and by preparing attorneys for upcoming court appearances. The foundation and knowledge obtained in this position will not only get you ready for law school, but will give you an essential competitive edge before starting your legal career.

Those that succeed in this position can earn a Law Clerk position throughout Law School and potential Associate Attorney position once licensed.

Requirements:  Bachelor's Degree, GPA of 3.8 or higher, Can Do Attitude, Self-Starter, Detail-Oriented

This is a full time position out of our Center Moriches Office.

To apply: Email cover letter, resume and writing sample to careers@liebatlaw.com 

Monday, June 30, 2014

Copyright Infringement Risks When Building Custom Homes

Sometimes it's tempting to purchase a plot of land and build a custom home. However, understanding the risks associated can help you avoid costly mistakes. One risk particularly is called copyright infringement.  Brokers, keep this in mind as you work with clients who are buying to retrofit or develop real estate. 

Copyright infringement on architectural designs has recently been addressed by the Second Circuit United States Court of Appeals on June 5, 2014 in the case James E. Zalewski, Draftics, LTD. v. Cicero Builder Dev., Inc., et al.

Mr. Zalewski is an architect who licensed several builders to use his architectural designs. He claims that these builders infringed on his copyright by customizing his designs and building homes based on his designs without his consent.

Mr. Zalewski points to the vast similarities between his designs and the Defendants’ designs, arguing that these similarities prove that the Defendants knowingly took from his work and infringed on his copyright.
However, the Court explains that copying in itself is not grounds for copyright infringement. Mr. Zalewski must not only prove that his work is copyrighted and that it has been copied, but that it was wrongfully copied as well. The Court held in this case that the Defendants’ designs, although similar, did not wrongfully copy from Mr. Zalewski’s original designs. The designs were for a colonial home and colonial homes can only be arranged in so many ways.

Ruling in favor of the Defendant, Circuit Judge Wesley claimed, “Plaintiff can get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall, and kitchen counters against the kitchen walls. Furthermore, the overall footprint of the house and the size of the rooms are ‘design parameters’ dictated by consumer preferences and the lot the house will occupy, not the architect.”

Based upon this ruling, a builder can use general designs without having to hire an architect.

Nonetheless, builders should always consult with an attorney prior to using a design to ensure that no copyright infringement is occurring.

What You Need to Know About the HAMP Loan Modification Process

Before you apply for a loan modification, it is wise to understand and have realistic expectations about the process. The Home Affordable Modification Program, now in its fifth year, is the federal modification program that has, to date, successfully provided for over 1.3 million permanent loan modifications nationwide. Many homeowners, however, do not know the steps in the HAMP modification process and feel frustrated or upset if they receive a modification with terms that are not what they expected. What homeowners must realize is that a HAMP Tier 1 loan modification requires a 31% debt-to-income ratio and must be reviewed in a ‘waterfall’ process, meaning that the Lender must modify the loan by specific means in a specific order.

The waterfall process is as follows:

1. Capitalization: When the Lender adds unpaid interest and unpaid tax and insurance payments to the principal balance. Late fees may not be capitalized for HAMP modifications.

2. Interest rate reduction: When the Lender reduces the original interest rate of the loan. Oftentimes, the Lender reduces the interest rate to 2% for the first five years and then gradually increases the interest rate on the loan every year until it reaches the current market value.

3. Term extension: When the Lender extends the life of the loan. The cap on a term extension for HAMP is 480 months or 40 years.

4. Principal forbearance: When the Lender forbears a portion of the principal balance. This portion of the principal balance becomes a “balloon payment,” which must be paid in full at the loan’s maturity or when there is a transfer of the property. It does not accrue interest.


If the debt-to-income ratio is not 31% after the Lender capitalizes the loan, then the Lender must then try to reduce the interest rate and so on until it achieves the desired ratio. If the ratio is still not 31% after the Lender has gone through the entire waterfall process, then the homeowner will be deemed ineligible for HAMP Tier 1 and then will be reviewed for other loan modifications, if available.

Friday, June 27, 2014

New Foreclosure Prevention Program launched in New York State

Yesterday, the New York Attorney General, Eric Schneiderman, announced the New York State Mortgage Assistance Program to help homeowners avoid foreclosure. 

Long Island, with its beautiful, expensive real estate, was devastated by the economic crisis in 2008 and is still struggling to recover six years later. It currently has the highest rate of defaulted mortgage loans and some of the highest foreclosure rates in New York State. In order to speed up the recovery process, Mr. Schneiderman launched this program yesterday to help struggling homeowners borrow up to $40,000 to stave off foreclosure. This program will become effective in September and will be available to Long Island before the rest of New York State, using the money from the National Mortgage Settlement of 2013 to fund these loans.  Many homeowners have been denied for loan modifications in the past because they were unable to pay off their arrears or because there were liens against their property. These loans, which are interest-free and not due until the mortgage is paid off in full, will help struggling homeowners pay off the obstacles to their loan modification approval and allow them to keep their homes.


Andrew Lieb writes in Dan's Papers New Magazine Behind The Hedges - 6/27 Issue "10 Secrets To a Smooth Hamptons Real Estate Purchase"

Check out Andrew Lieb's latest article featured in Dan's Papers Behind the Hedges Magazine, 10 Secrets To A Smooth Hamptons Real Estate Purchase.

In this article Andrew navigates the legal and otherwise logistical waters of buying a home on the East End. 

Topics discussed include:
  • Affordability
  • Bonus Rights
  • Credit
  • Broker
  • Pre-Approval
  • Title Report
  • Survey
  • Rental Option
  • Date for Possession
  • Certificate of Occupancy
The magazine is out so you can pick up a copy all over the east end and Manhattan. 

Here is a link to the digital copy. 

Tuesday, June 17, 2014

National Grid's 811 Service

If you're thinking about landscaping your backyard, installing a wooden deck around your pool, or doing any other project that involves digging, remember to first call National Grid's 811 service. By calling this number, you confirm with National Grid that your digging will not interfere with power lines or pipe lines that are located close to the surface. 811 is a free service that helps keep you and your utilities safe and allows the area to enjoy its services uninterrupted.

Monday, June 16, 2014

Bank of America is Under Scrutiny

Bank of America is under scrutiny by the United States Department of Justice for its unscrupulous financial practices. In order to prevent another economic collapse, the federal government believes that Bank of America, along with other large financial institutions, must be penalized for their actions.

Allegedly having handled shoddy and fraudulent loans, Bank of America is in negotiations to settle civil probes for 12 billion dollars. The amount of this settlement may go up, and if a deal is reached, at least $5 billion will go towards consumer relief by way of loan modifications with principal and monthly payment reductions and other forms of help for defaulted loans. This potential settlement, of course, is great news for the struggling homeowner and represents an enormous fine against the financial behemoth of Bank of America.

If a deal cannot be reached, the Justice Department will most likely proceed with a lawsuit against Bank of America for its fraudulent practices.

Please go here if you like to read more.

Friday, June 06, 2014

Wow - Most Expensive US Homes - Business Insider

A terrific read with great pictures - The 12 Most Expensive Homes For Sale In The US

Of the 12 mansions, 2 are in Long Island and 7 are in NYC with the remaining 3 being in CA.

Interestingly, most of the NYC homes are located in fabulous hotels.

If you have ever wondered what you could buy for $135M that you couldn't buy for $68M this article is for you.

Tuesday, May 27, 2014

Foreclosure Activity is Down Nationwide

Nationwide foreclosure activity is at its lowest point since 2007. The amount of auctions, defaults, and repossessions have substantially decreased across the country. Only 17% of all mortgaged homes are seriously underwater as opposed to 29% in 2012, and negative equity is down overall.

It is anticipated that we will also start to see a decline in short sales in 2014 due to two major reasons:

a. The Mortgage Forgiveness Debt Relief Act has not been passed for 2014. This means that borrowers are liable for the income tax on the forgiven debt in a short sale. In many cases, this kind of tax bill is too high and the borrower must default on his or her tax bill. The IRS can subsequently garnish wages, freeze bank accounts, and place liens on assets without having to first obtain a judgment. Many borrowers are unwilling to put themselves in such a position and would rather let the property go to foreclosure than to have the IRS go after them for money they do not have.

b. Lenders are less likely to approve short sales today because they know they can successfully sell the properties at auction or as an REO (bank-owned property) at a higher price because fair market value for real estate is on the increase.


Please note that the total amount of foreclosures (percentage of units by area) in Suffolk County is higher than the national average and the New York State average, and the amount of Suffolk County homes in pre-foreclosure is on the rise. Overall, however, foreclosure auctions are down in Suffolk County just as the rest of the nation. Keep this in mind, brokers, as you navigate the real estate in Suffolk County.

Thursday, May 22, 2014

New Tax Laws And Its Impact On Estate Planning

Updates to the tax laws of New York are available here and are effective as of April 1, 2014!

New changes in tax laws that affect a person’s estate that you should be aware of:
  1. Changes on estate tax exclusions rising substantially (to eventually match federal estate tax exclusion). See NY Tax Law section 952(c);
  2. Reforms on gifts given prior to death. See NY Tax Law section 954(a); and
  3. Repeal of the New York Generation Skipping Transfer tax. See Part X, Section 8, repealing article 26-b).

On March 31, 2014, Governor Cuomo signed legislation that makes broad changes to the New York State Estate and Gift Tax Laws, as well as some technical changes to certain trust income tax rules. 

Pursuant to New York Tax Law §952(c), estate tax exclusions will be rising dramatically each year from the current New York State amount of One Million Dollars ($1,000,000.00) to Five Million Two Hundred Fifty Thousand Dollars ($5,250,000.00) by 2017, which is the current federal estate tax exemption amount. Estate tax exclusion means the dollar amount a person’s estate can pass free from New York Estate Tax. More specifically, for individuals dying on or after April 1, 2014, and before April 1, 2015, the estate tax exclusion amount will be Two Million Sixty Two Thousand Five Hundred Dollars ($2,062,500.00). For individuals dying on or after April 1, 2015, and before April 1, 2016, the estate tax exclusion amount will be Three Million One Hundred Twenty Five Thousand Dollars ($3,125,000.00). For individuals dying on or after April 1, 2016, and before April 1, 2017, the estate tax exclusion amount will be Four Million One Hundred Eighty Seven Thousand Five Hundred Dollars ($$4,187,500.00). Lastly, for persons dying on or after April 1, 2017, and before January 1, 2019, the estate tax exclusion amount will be Five Million Two Hundred Fifty Thousand Dollars ($5,250,000.00).

Pursuant to New York Tax Law §954(a), gifts made by a New York resident within three (3) years of that person’s death on or after April 1, 2014, and before January 1, 2019, will be added back into that person’s estate. Bringing these gifts back into the deceased person’s estate will now increase that person’s gross estate and this may make those gifts subject to the New York Estate Tax now, depending on the size of the estate, as discussed in the previous paragraph.

Pursuant to Part X, Section 8 of the new tax laws, the New York State Generation Skipping Transfer Tax is repealed. Prior to its repeal, this tax imposed a generation-skipping transfer tax on outright gifts to persons who are two (2) or more generations below the transferor, or on distributions from certain trusts that are held solely for the benefit of said persons.

These are only a few changes to the current New York State laws that are affecting estate planning in the future. To summarize, these new laws will narrow and ultimately eliminate the estate tax exclusion gap between the New York and Federal estate tax exclusion amounts. For the next five years, however, as the tax estate exclusion amount increases and the taxable gift laws apply, estate planning will become more complex.

See all the recent changes in the New York State laws, effective April 1, 2014, on page 488

Friday, May 16, 2014

New Policy to Reduce Foreclosures on Long Island

Starting in June 2014, judges on Long Island will take on a substantial role in Foreclosure Settlement Conferences as issues arise in foreclosure litigation. The purpose of this new policy is to solve homeowners’ issues in an efficient way and help more homeowners obtain loan modifications in an area of the country where the percentage of foreclosures is still quite high.

New York requires judicial intervention in the foreclosure process. It is New York State Law that the courts must hold Foreclosure Settlement Conferences for all residential foreclosure actions involving home loans originating between January 1, 2003 and September 1, 2008, or nontraditional home loans. Previously overseen only by Court-appointed referees, these conferences allow borrowers to discuss workout options with their mortgage lenders in order to avoid foreclosure. However, the process has always been flawed, as lenders oftentimes would send representatives who not only did not have knowledge of the cases but also had no authority. This new policy is supposed to address these types of issues quickly, correct the flaws of the Foreclosure Settlement Conferences, and protect borrowers against the wrongful practices of these mortgage lenders. A judge is much more equipped to handle these issues than a referee, allowing for fewer foreclosures on Long Island.

Friday, April 25, 2014

Is your buyer precluded from buying US Real Estate?

As previously posted on February 28, 2014:


Check with the Office of Foreign Assets Control at the US Treasury before you help your client buy.


To use the Office's search features by person and country, click Resources on the page and find the feature that fits your need.

Remember, The Office of Foreign Assets Control administers and enforces economic sanctions programs primarily against countries and groups of individuals, such as terrorists and narcotics traffickers. The sanctions can be either comprehensive or selective, using the blocking of assets and trade restrictions to accomplish foreign policy and national security goals.

So, its important to check the Office's Resources frequently as sanctions change and you need to know what the rules are today when working in real estate brokerage.

Thursday, April 24, 2014

Guidelines Shifting for the Federal Loan Modification Program

Updates to the Making Home Affordable Handbook for the federal Home Affordable Modification Program are available here and will be effective July 1, 2014!

Top things you need to know about HAMP:
  1. The Home Affordable Modification Program (HAMP) is a federal program designed to help homeowners obtain affordable loan modifications.
  2. HAMP Tier 1 only applies to loans of principal residences.
  3. A HAMP Tier 1 mortgage payment must reflect 31% of the homeowner's gross monthly income.
  4. HAMP Tier 2 may apply to loans of principal residences or to loans of rental properties.
  5. A HAMP Tier 2 mortgage payment must be within the range of 25% to 42% of the homeowner's gross monthly income.
  6. A HAMP Tier 2 mortgage payment must represent a reduction of at least 10% of the original mortgage payment amount. 
However, Supplemental Directive 14-02 to the Making Home Affordable Handbook is drastically changing the requirements under HAMP Tier 2 to make it easier than ever to get a loan modification on a non-GSE rental property!

In Section 6.3.3 of Chapter II of the MHA Handbook, the post-modification principal and interest payment under HAMP Tier 2 must be at least ten percent less than the pre-modification principal and interest payment. To clarify, if the original monthly principal and interest mortgage payment is $3,000, then the modified monthly principal and interest mortgage payment under HAMP Tier 2 must be $2,700 or less according to the ten percent reduction rule. Under this Supplemental Directive, however, this required percentage is totally erased. Now, it is only required that the post-modification principal and interest payment be less than the pre-modification principal and interest payment, thus expanding the amount of homeowners eligible for HAMP Tier 2. In the past, many homeowners were ineligible because servicers could not reduce the principal and interest amount by the required percentage due to the default amount, monthly real estate taxes, property value, and other similar factors. Without a required percentage, servicers will have a much easier time reducing the post-modification principal and interest payment for more homeowners across the country.

However, it should be noted that servicers may require a minimum reduction as long as that reduction is not greater than ten percent. Servicers must include this minimum reduction in their written policy if they choose to do so.

Another important clarification is the modification of loans prior to the loss of good standing. If a homeowner would like to modify an already HAMP-Tier 1-modified loan and is not in default on that loan, he or she may be eligible for HAMP Tier 2 if it has been more than five years since the HAMP Tier 1 modification. Once a homeowner accepts a HAMP Tier 1 loan modification, he or she cannot obtain another one in the future if that loan goes into default again. HAMP Tier 2, however, would still be available to this homeowner as a loan modification option (even if the property is a primary residence) as long as it has been more than five years since the original HAMP Tier 1 modification date. Since the Home Affordable Modification Program is the federal program to help homeowners cure their default, it always has priority over Lender in-house modifications.

Also included in this Supplemental Directive are updated guidelines regarding post-modification counseling, assistance for homeowners with limited English proficiency, and notice of interest rate step-ups. Although these guidelines are important as well, it is crucial that real estate agents focus on the new HAMP Tier 2 guidelines, especially if their clients own rental properties that are in risk of default or are currently in default. The more knowledgeable you are able these guidelines, the more your clients will trust you in other aspects of real estate.

Again, these updated guidelines will be effective July 1, 2014, and it is important that you understand and prepare for these changes. 

Friday, April 18, 2014

Brand New Fair Housing CE Course Offered in Southampton



Property Manager Liability: 

Requirements, Responsibilities and Fair Housing

Maximize your client's investment while minimizing your exposure to great liability. Be cautious, property management is a serious business that has many liability landmines for the weary. Do not just dabble in property management. Do not just help out a landlord brokerage client in dealing with their tenants. Learn why the Department of State considers property management to be a licensed activity in this State. Understand how to mitigate exposure to license law liability, premises liability, and fair housing liability. Get real life examples of what can go wrong. Most importantly, learn what must go into your Property Management Agreement and why a top property manager should get paid.

Credits: 3.0 CE Hours **Satisfies DOS Mandatory Fair Housing Requirement

Date: May 7th, 2014 in Southampton



Tuesday, April 08, 2014

Fredrik’s Fiduciary Duty – Million Dollar Listing New York

Fredrik Eklund: Photo http://www.bravotv.com/


Spoiler Alert: The below is a legal analysis of Fredrik Eklund's role in the April 2, 2014 Season 3, Episode 1 of Million Dollar Listing New York.

The premier of this season of Million Dollar Listing New York, The City Will Eat You Alive, places Douglas Elliman's Fredrik Eklund, in an ethical quandary and he comes out looking as professional as ever while making the deal for his client and getting a commission along the way.

In the episode, "Fredrik lands his dream listing, only to find out that the seller may be his worst nightmare". The Seller is a micromanager; sound familiar? He knows what he wants, $9.5M, and he makes it clear that he doesn't want to be bothered for anything less. However, Fredrik got an offer of $8M.

What should he do?

As a Licensed Real Estate Salesperson in the State of New York, an agent can have one of five types of agency with differing corresponding Fiduciary Duties dependent on the applicable agency type, to wit:


  1. Seller's Agent
  2. Buyer's Agent
  3. Dual Agent
  4. Dual Agent with Designated Sales Agent
  5. Broker's Agent


An agency relationship means the duties of a licensed individual in representing the interests of its principal in this context. Here, Fredrik was clearly a Seller's Agent, as his interests were aligned with the Seller; he was trying to get the Seller the most possible money in the transaction. In fact, the Agency Disclosure Form in the State of New York, states as to a Seller's Agent, the following: "A seller's agent does this by securing a buyer for the seller's home at a price and on terms acceptable to the seller". Conversely in the situation displayed in the episode, where Fredrik was receiving the $8M offer at the restaurant, Fredrik was meeting with a Buyer's Agent who had previously viewed the property at a Broker's Open House. The Buyer's Agent was clearly aligned with the Buyer's interests, offering a significantly lower number than the Ask. In fact, the Agency Disclosure Form in the State of New York, states as to a Buyer's Agent, the following: "The buyer's agent does this by negotiating the purchase of a home at a price and on terms acceptable to the buyer". As a result, in the episode, the Buyer's Agent owed his Fiduciary Duties to the Buyer and Fredrik, the Seller's Agent, owed his Fiduciary Duties to the Seller.

To clarify, a Buyer's Agent and a Seller's Agent cannot work at the same brokerage company by operation of New York State Law. Instead, where two agents at the same company work an In-House Deal, representing the interests of different parties to the transaction, that type of agency is called a Dual Agent with Designated Sales Agent in New York State. However, where an agent represents the interest of the Seller and a different agent represents the interest of the Buyer there are two possible types of agency that can apply, with the dispositive factor as to the appropriate agency being whether the opposing agents work at the same brokerage company. If the agents work at the same brokerage company, the agency is called a Dual Agent with Designated Sales Agent. If the agents work at different brokerage companies, one agent would be the Seller's Agent and one agent would be the Buyer's Agent, which is the situation Fredrik was engaged in during this episode.

In a Dual Agent with Designated Sales Agent situation the agents have compromised Fiduciary Duties because they both report to the same supervisor. In fact, the New York State Agency Disclosure Form states, as to this conflict, the following: "The designated sales agent must explain that like the dual agent under whose supervision they function, they cannot provide undivided loyalty". Yet, Fredrik was a Seller's Agent, and as such, had the following Fiduciary Duties to his client, the Seller, including: (1) Confidentiality; (2) Obedience; (3) Loyalty; (4) Accountability; (5) Disclosure; and (6) Reasonable Care.

Which Fiduciary Duties were at play in the scenario faced by Fredrik when he received an $8M offer while his client didn't want to hear about anything below $9.5M?

Fredrik had two competing Fiduciary Duties in this scenario, one to be obedient to his Client's instructions and one to give full disclosure to his Client. So, on the one hand Fredrik had to listen to his client's direction to not bother him absent a full Ask offer, but on the other hand, Fredrik lacked the authority to reject the $8M offer without his Client's authority, which first required him to fully disclose the offer to his Client.

So what happened?

Fredrik chose right and advised his client of the offer in the face of knowing all the while that he was going to be lambasted for making the call. To know that Fredrik's decision was correct an agent only needs to do a Cost / Benefit Analysis of the choices. The worst case scenario in telling your client that they received an offer below the Ask is that they are unhappy and give you grief about wasting their time. However, the worst case scenario in not disclosing an offer to your Client is that the Client claims that you breached your Fiduciary Duties and makes a complaint to the Department of State charging you with a License Law Violation. In fact, the Department of State has previously suspended a real estate agent's license for a period of six months for failing to transmit an offer and also failing to provide an agency disclosure form in a matter called Lemcke v. Department of State. So, it seems like a rather simple choice for a real estate agent faced with this predicament.

In Million Dollar Listing the choice was not only the safest, but the best for the agent and the Client as well. You see, by making the call and engaging his principal, the Seller, Fredrik initiated a dialogue that resulted in a deal at $8.8M. A win for the Seller, Buyer and the agents involved.


Wednesday, April 02, 2014

Title Insurance Reform in NYS Budget

Accordingly to a Press Release entitled, Governor Cuomo and Legislative Leaders Announce Passage of 2014-15 Budget, NYS now has significant changes to our title insurance industry.

Title insurance insures against defects in title to real property and is required if a purchaser obtains an institutional mortgage as part of their purchase of the real property. Some private lenders do not require title insurance. However, its always a good idea to not only get title insurance in the form of a lender's policy, but also to obtain a fee or homeowner's policy as well because purchasing property is quite expensive in this State and insuring that you own what you thought you bought is a great idea.

According to the Press Release, the Title Insurance Reform coming to NYS is as follows:

The Budget includes measures to provide stronger oversight for the title insurance industry, which will help better protect consumers and lower costs for New York homeowners. The Budget provides the Department of Financial Services (DFS) with authority to issue licenses to title insurance agents for the first time, just as it licenses all other insurance agents and brokers. Licensing will require agents to meet qualification standards and undergo regular training. DFS will also have the authority to monitor abuse by agents and to revoke licenses accordingly, as well as help root out conflicts of interest that drive up costs for homeowners. Together with other measures including regulations DFS will soon issue on title insurance, these reforms are expected to result in a 20 percent reduction in title insurance premiums and closing costs for new home purchases and a more than 60 percent reduction in costs on refinancing transactions.

The 2 keys in this reform is:

  1. Licensing requirements for title closers
  2. Reduced costs of title insurance
As the Department of Financial Services issues the applicable Regulations we will update this blog with more information. 

Stay tuned. 

Tuesday, April 01, 2014

April is Fair Housing Month

Today is the beginning of Fair Housing Month. The Fair Housing Act was enacted on April 11, 1968, making it unlawful to discriminate against any person based on race, color, national origin, religion, sex, familial status, or handicap in the sale or rental of a dwelling. Although brokers must comply with the Fair Housing Act every day, it is in the month of April that the Fair Housing Act should be commemorated. Print out the Fair Housing Declaration and hand it out to your fellow agents. Reread the Fair Housing Act, and do not forget to sign up and attend our Lieb School class on the Fair Housing Act on September 18, 2014 or December 10, 2014. 

Monday, March 31, 2014

DECISION: The Alleged Effects of Mold on Human Health

The alleged effects of mold on human health has been addressed by New York’s highest court, the Court of Appeals, on March 27, 2014 in Cornell v. 360 W. 51st St. Realty, LLC.

The facts of the case were that Ms. Cornell resided in an apartment from 1997 to 2003, after which time she vacated the property due to alleged health issues allegedly caused by mold and dampness in her apartment. She claimed to be dizzy, asthmatic and congested and was unable to function or sleep properly while in the apartment.

51st Street Corporation opposed her claim, arguing that Cornell was unable to prove a cause-effect relationship between mold and disease. Relying on a clinical immunologist as an expert, 51st Street Corporation demonstrated that the scientific community generally accepts that mold can cause disease through specific channels; however, none of Cornell’s symptoms can be directly linked to mold exposure.

In dismissing the complaint, the Court held: “Studies that show an association between a damp and moldy indoor environment and the medical conditions that [Plaintiff’s Expert] attributes to Cornell’s exposure to mold…do not establish that the relevant scientific community generally accepts that molds cause these adverse health effects.”

Brokers, keep this case in mind as you work with clients who have fears about the effects of mold on human health when they refuse to enter a property claiming to smell mildew.

As the Court explained, mold exposure is not established by the scientific community to create toxic effects, except for cases of ingestion. It only is shown to cause an immune response in allergic individuals. 

Mortgage Finance Reform Advances in the Senate

The Senate is currently formulating its bipartisan plan to overhaul Fannie Mae and Freddie Mac in the Committee on Banking, Housing, and Urban Affairs. Chairman Tim Johnson (D-SD) and Ranking Member Mike Crapo (R-ID) have been working together to craft legislation that shifts the mortgage market to the private sector and creates the Federal Mortgage Insurance Corporation (FMIC) that will protect taxpayers from having to bear the costs if another housing bubble bursts in the future. FMIC will be an independent agency that supervises servicers and guarantors and provides insurance on mortgaged-backed securities. It will also create a mortgage insurance fund that funds insurance claims but only after the private sector absorbs the initial risk. The government will remain a guarantor of mortgages as a last resort.

In a news release, Mike Crapo explained, “This agreement moves us closer to ending the five-year status quo and beginning the wind down of Fannie and Freddie while protecting taxpayers with strong private capital, building the components for a stable secondary market and avoiding repeating the mistakes of the past. Government control of Fannie and Freddie with no private capital to protect taxpayers against losses is unacceptable.”

This legislation is only in its early stages, focusing on the necessity of a smooth and efficient transition to private lending and the continuing availability of the affordable 30-year mortgage. Brokers, change is coming to the mortgage market, and it is essential that you are knowledgeable every step of the way to a final bill. This legislation directly affects your occupation and your clients, so keep your eyes open for more advances in legislation.

Click here to read more on the Housing Finance Reform legislation. You may also follow S. 1217’s progress here on govtrack.us.