LIEB BLOG

Legal Analysts

Friday, July 24, 2015

Top 5 Real Estate Lawsuits Aspiring Landlords Need to Know

There are so many get-rich-quick schemes for investing hard-earned savings in real estate to generate a huge passive income through rentals. Wake up--nothing in life is always roses, and not everyone can be Kiyosaki's Rich Dad. This is the list of the Top 5 litigation issues that income-producing property owners face incident to living the landlord's dream.

Full article in The Huffington Post, written by Andrew Lieb, Esq. here. 

Wednesday, July 22, 2015

2 Month Extension for New Mortgage Disclosure Rules

The rules for how lenders are required to disclose mortgage information to home buyers are about to change dramatically. In the interest of a smoother transition, The Consumer Financial Protection Bureau has delayed the effective date of these rules, known as the TILA-RESPA Integrated Disclosure Rules, from August 1, 2015 to October 3, 2015.

Mortgage lenders will face new requirements for providing financing information to home buyers during the mortgage application process. These rules will also affect how real estate attorneys and brokers manage the conclusion of a transaction because lenders will be required to send home buyers specific disclosures before a closing can occur and certain financial details of a transaction cannot be altered without a new disclosure form being issued.

Real estate professionals are encouraged to advise their clients who are close to choosing a home and applying for a mortgage to inquire with their lender about how these new rules may affect their mortgage application.


For more information about the new disclosure rules, please visit the Consumer Financial Protection Bureau website

Voice Your Support for Debt Relief for Underwater Homeowners

The Mortgage Forgiveness Debt Relief Act of 2007, which provided tax breaks to homeowners who were forgiven debt resulting from loan modifications, short sales, or deeds in lieu, was not extended through 2015. Though legislation has been introduced in Congress to extend the Act through 2016, it is incumbent on the people, especially on Long Island, where foreclosure rates are still higher than the national average, to contact their representatives and voice their support for the bill.

If you want to speak to your representatives to push for an extension for this bill, there is now an easy-to-use Web app called Democracy.io that allows its users to email their House representative and senators in a group and on a simple platform instead of having to fill out clunky forms for each representative on outdated government websites. Since easy access to the government is an important way of ensuring that the people’s concerns are heard by the government, Democracy.io will soon allow its users to send letters, call, and schedule meetings with their representatives as well.

Though it is still difficult for Congressmen to filter through the millions of messages that are received every day, Democracy.io is nonetheless a step forward in the right direction. As technology becomes simpler on the constituents’ sides, Congress will need to match on its side in order to keep up with the increased flow of communications. For now, all underwater homeowners should take advantage of Democracy.io and contact their representatives about The Mortgage Forgiveness Debt Relief Act of 2007. The more support behind the bill, the more likely it will be pushed through.


You can also track the bill here

Monday, July 20, 2015

Foreclosure: Borrowers - it's not just you, the banks ignore practically everyone

New York County, Supreme Court, recently published a case opinion by initially referencing the plight of many homeowners in the first paragraph as follows:

"They have been thwarted by unresponsive loan servicers, unprepared lawyers, boilerplate form letters, and the banks' or servicers' often-changing and repetitive demands for financial information."

Sound familiar?

In the case, the Court reduced interest to 2% during the time that it found the lender acted in bad faith. This opinion is legally important because it expands the time of its interest sanction to pre-settlement conferences, but more so, its functionally important for borrowers because the opinion represents a terrific explanation of the current law governing mortgage modifications.

The law is set forth in detail below:



In reaching its decision, the Court, laid out the law as follows:

Duty Post-Default:
"3 NYCRR 419.2 establishes a "duty of good faith and fair dealing" by mortgage loan servicers in connection with their transactions with borrowers. This duty requires that servicers "make borrowers in default aware of loss mitigation options and services offered by the servicer in accordance with section 419.11" (3 NYCRR 419.2 [e]). This duty also requires servicers to "provide trained personnel and telephone facilities sufficient to respond promptly to borrower inquiries regarding their mortgage loans" (id., 419.2 [f]), and to "pursue loss mitigation with the borrower whenever possible in accordance with section 419.11" (id., 419.2 [g]). Part 419.11 creates an obligation on the part of servicers to make reasonable and good faith efforts to pursue appropriate loss mitigation options, including loan modifications as an alternative to foreclosure. Notably, section 419.11 (d) requires that servicers must complete their review of a borrower's eligibility for a loan modification or other loss mitigation options and advise the borrower or their representative of the determination in writing within 30 days of receiving all required documentation. Finally, section 419.11 (i) creates a good faith presumption on the part of servicers if they offer loan modifications in accordance with HAMP guidelines."

Duty Post-Commencement of Mortgage Foreclosure Action:
CPLR 3408 (a) and (f) read, in pertinent part, as follows:
"(a) In any residential foreclosure action involving a home loan . . . in which the defendant is a resident of the property subject to foreclosure, the court shall hold a mandatory conference . . . for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan[*8]documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate.
.....
(f) Both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible."

To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408 (f), a court must determine that "the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution" (US Bank N.A. v Sarmiento, 121 AD3d 187, 203 [2d Dept 2014]). Following the adoption of CPLR 3408, the Chief Administrator of the Courts promulgated regulations setting forth the rules and procedures governing CPLR 3408 settlement conferences (see 22 NYCRR 202.12—a). This regulation requires that "[i]f the parties appear by counsel, such counsel must be fully authorized to dispose of the case" (22 NYCRR 202.12-a [c] [3]).


Next, the Court laid out its options in sanctioning violations of CPLR 3408(f) as follows: 

"barring of interest on the loan for the period of time that the servicer acted in bad faith and unduly prolonged the foreclosure proceedings (see U.S. Bank N.A. v Smith, 123 AD3d 914 [2d Dept 2014] [mortgagee barred from collecting interest on mortgage for 9-month period]; US Bank N.A. v Williams, 121 AD3d 1098 [2d Dept 2014] [court canceled all interest accrued on the subject mortgage loan between the date of the initial settlement conference and the date that the parties agreed to a loan modification]; US Bank N.A. v Sarmiento, 121 AD3d at 200 [interest tolled from date mortgagor began placing $2,000 per month in an escrow fund, at the court's direction]; see also Bank of America N.A. v Lucic, 45 Misc 3d 916 [Sup Ct, NY County 2014]; U.S. Bank, N.A. v Shinaba, 40 Misc 3d 1239[A], 2013 NY Slip Op 51484[U] [Sup Ct, Bronx County 2013]; Wells Fargo Bank, N.A. v Ruggiero, 39 Misc 3d 1233[A], 2013 Slip Op 50871[U] [Sup Ct, Kings County 2013]; Deutsche Bank Trust Co. of Am. v Davis, 32 Misc 3d 1210[A], 2011 Slip Op 51238 [Sup Ct, Kings County 2011]). Because foreclosure is an equitable remedy which triggers the equitable powers of the court (Notey, 41 NY2d 1055 supra; Norwest Bank Minn., NA, 94 AD3d at 836, supra), courts have not hesitated to toll interest when it is an appropriate remedy for a [*9]mortgagee's unconscionable delay in prosecuting foreclosure actions (see Dayan v York, 51 AD3d 964 [2d Dept 2008]; Danielowich v PBL Dev., 292 AD2d 414 [2d Dept 2002]; Dollar Fed. Sav. & Loan Assn. v Herbert Kallen, Inc., 91 AD2d 601 [2d Dept 1982]; South Shore Fed. Sav. & Loan Assn. v. Shore Club Holding Corp., 54 AD2d 978 [2d Dept 1976])."


Tuesday, July 14, 2015

Real Estate Attorneys as Real Estate Brokers

Attorneys don't need a real estate brokerage license to earn a commission. Yet, they can obtain a license by simply paying a fee without even taking the requisite 120 hour class or passing the exam. 

So, why should an attorney bother becoming licensed as a broker? The reason is that it both helps the attorney's clients to gain access to property and it also secures the attorney's ability to split a brokerage commission pursuant to a cooperative brokerage agreement.

Full article in The Suffolk Lawyer, written by Andrew Lieb, Esq. here. 

Monday, July 13, 2015

HAMP Streamlined Modifications

The U.S. Treasury Department has issued Supplemental Directive 15-06 “Making Home Affordable Program – Streamlined Modification Process”.

This new program is akin to the Streamlined Modifications already offered on GSE Loans. GSE or “Government-sponsored enterprise”, are privately held corporations for a public purpose such as Fannie Mae and Freddie Mac. These GSEs have had in place streamline modifications that Loan Servicers are mandated to offer to eligible borrowers. One draw-back in any type of modification with a GSE Loan is the fact that principal reduction is not offered.

This new directive is for Non-GSE Loans and the Loan Servicers and Lenders such as Chase, Citibank, Carrington Mortgage, Nationstar Mortgage and so many others. The streamline modification provides a modification opportunity to delinquent borrowers of Non-GSE Loans without the need to submit any docs or for any income verification. In fact, once a Loan Servicer has designated its pool of eligible borrowers a Streamline HAMP Trial Period Plan Offer will be issued to the Borrower. The only thing for the Borrower to do is make the first payment to enter into the trial period. This will greatly improve the approval process for those Borrowers that are directly designated and free up resources for those borrowers that may not be eligible by lessening the modification approval time frame. The bonus is that in Non-GSE modifications, principal reduction can, and may be included in the modification.

Eligible Borrowers will only learn of this from their Loan Servicers directly by mail. Be sure to keep an eye on all mail received from your Loan Servicer to see if you are in luck. Regrettably, if a Borrower does not fit within the specific eligibility pool they will be out of luck for streamline modifications.

Monday, June 29, 2015

Does Your Broker Really Work For You?

Both buyers and sellers need to know what side a real estate salesperson is on in a transaction and also what duties they can expect from their real estate brokerage and salesperson while being represented.

Full article in Behind The Hedges, written by Andrew Lieb, Esq. here

Real Estate Brokers and Disclosure Requirements

Learn about real estate brokers' duty to disclose to those that they do not represent. Recent case creates more questions than it answers.

Full article in The Suffolk Lawyer, written by Andrew Lieb, Esq. here

Deal Killers - Free Lieb School Continuing Education Class on 7/29/15 in NYC

Course:  Deal Killers - Don't Let Your Deal Die

Instructor: Andrew Lieb, Esq.

Date: July 29th, 2015 at 353 West 46th Street (between 8th and 9th avenue)

Course Summary: You get the client, spend months looking for the perfect deal, find it, negotiate it and send it to an attorney to close it. Then, what? It dies. Have you ever wondered if you could do anything differently to have more of your deals close? Learn some of the main reasons that deals die like issues with the Sales Agreement, Title, Escrow Deposit, Closing Date, Financing / Contingencies and the Seller’s Concession. Next, learn how to proactively save your deals and earn a commission. Knowledge is commission.

CE Credits: 3

To Register: Login to Your Lieb School Account and Click "Enroll" or "Join Waiting List" 

Thursday, June 25, 2015

United States Supreme Court Holding: Plaintiffs Can Allege Disparate-Impact Discrimination Under Fair Housing Act

Today, in the case Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the United States Supreme Court held 5-4 (Kennedy, Ginsburg, Breyer, Sotomayor & Kagan for the majority) that disparate-impact is a cognizable cause of action under the the Fair Housing Act (FHA). In short, a plaintiff can now point to statistical evidence of discrimination in lieu of the more difficult standard of proving that the defendant had actual discriminatory intent.

In the legal world, whether under the FHA, Title VII of the Civil Rights Act of 1964, or the Age Discrimination in Employment Act of 1967,  there are two types of discrimination: disparate-treatment, and disparate-impact. Disparate-treatment typically is discriminatory on its face. For instance, when a landlord refuses to rent to women. The landlord has discriminated against a protected class and is liable under the FHA. Disparate-impact is neutral on its face, but results in statistical discrimination of a protected class. For instance, when a landlord refuses to rent to people with long hair. The landlord's policy does not on its face discriminate against a protected class, but the effect is disproportionate discrimination against women. Under the theory of disparate-impact discrimination, the landlord is discriminating against a protected class, even though that may not be his intention, and is liable under the FHA.

In the Texas Department of Housing and Communities Affairs case, the plaintiff alleged that the criteria set by the Texas Department of Housing and Communities Affairs for the distribution of tax credits intended to assist development of low income housing resulted in discrimination on the basis of race. The criteria, which was racially neutral on its face because it considered  economic factors almost exclusively, had the statistical result of higher approval rates for communities with higher proportions of African-Americans. The plaintiff alleged that the criteria resulted in the Texas Department of Housing and Communities Affairs discriminating against Caucasians under the theory of disparate-impact.

The Supreme Court, recognizing the broad expansion of liability under the disparate-impact theory, carefully established the burden a plaintiff must meet to make a prima facie showing of discrimination. That is, statistical discrimination of a protect class alone will not result in liability. First, the plaintiff must show that the action or policy results in statistical discrimination against a protected class. Second, the plaintiff must show that there is a specific policy held or perpetrated by the defendant that is causing the disparate-impact discrimination. Third, the plaintiff must show that there is an alternative practice or policy that has less disparate impact while still serving the defendant's legitimate needs.

The consequences of this ruling will be far reaching as plaintiffs attempt to link facially neutral policies to disparate-impact discrimination against protected classes. In New York, for instance, disparate-impact greatly expands the potential liability for discrimination against the numerous protected classes in our State. While the FHA has seven (7) protected classes (Race, Color, National Origin, Religion, Sex, Familial Status, and Handicap), New York State has eleven (11) protected classes (Race, Creed, Color, National Origin, Sexual Orientation, Military Status, Sex, Age, Disability, Marital Status, and Familial Status) and New York City has fourteen (14) protected classes (Race, Creed, Color, National Origin, Gender, Age, Disability, Sexual Orientation, Marital Status, Partnership Status, Alienage Status, Citizenship Status, Lawful Source of Income, and Children are, may be, or would be residing with such person). While New York City and New York State already recognized disparate-impact as a cognizable cause of action in certain circumstances prior to this most recent Supreme Court ruling, the recognition of disparate-impact under the FHA will likely cause expansion of disparate-impact theories in jurisdictions and statutes which do not specifically recognize disparate-impact as a cognizable cause of action.

The law of the land is clear - disparate-impact is just as damaging as disparate-treatment and violators cannot hide behind facially neutral policies.

Thursday, June 18, 2015

Reverse Mortgages: An Understanding Of The Risks

This month, the Consumer Financial Protection Bureau (CFPB) published the article A closer look at reverse mortgage advertisements and consumer risks, which examines its study of advertisements for this product to older homeowners. The CFPB found “many contained confusing, incomplete, and inaccurate statements regarding borrower requirements, government insurance, and borrower risks”. 

Nonetheless, CFPB does acknowledge that “reverse mortgages can help some older homeowners meet financial needs”, which makes them an important product for real estate brokers to understand. 

Unfortunately, the article finds that “[c]onsumers described ‘lifestyle enhancement’ as the primary use for reverse mortgage proceeds”, but a reverse mortgage should only be used as a last resort because “homeowners can lose their home if they fail to meet the loan terms”.

Brokers should read this article and decide for themselves if a reverse mortgage is a good product to recommend. 

Thursday, June 11, 2015

Agency Disclosure - Free Lieb School Continuing Education Class on 7/16/15 at Newsday in Melville

Course: Agency Disclosure

Instructor: Andrew Lieb, Esq

Date: July 16th, 2015 at Newsday in Melville

Course Summary: 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.
CE Credits: 3
To Register: Login to Your Lieb School Account and Click "Enroll" or "Join Waiting List"

Friday, June 05, 2015

Real Estate Brokers - DON'T Have Your Clients Sign the LIBOR Sales Agreement

Last evening, Lieb School taught a continuing education course, Estate Deals, at Newsday's Headquarters to over 100 real estate salespersons from the region.

Before the class began, I told the audience about a discussion happening right now between attorneys on the New York State Bar Association's Real Property Law Section's Listserv, called "Real Estate Binders". I advised of the conclusion of the attorneys about how terrible the results are for transacting parties when they sign Sales Agreements prepared by real estate brokers / salespersons who procured the transaction without having such an agreement drafted by a competent attorney. To my shock, many brokers thought I was wrong and they insisted to continue this practice of having their clients sign this one (1) page form contract.

After reading, I hope they will rethink their position because it is quite possible that transacting parties will end up being in a binding contract by way of this Sales Agreement, which is the furthest thing from their intended goal when working with a real estate broker and/or salesperson. The case of Pescatore v. Manniello addresses such a situation wherein the Appellate Division stated that the "agreement satisfied the statute of frauds, as it identified the parties to the subject real estate sales transaction, described the realty to be sold with reasonable particularity, and it stated the purchase price of the realty, the down payment called for as well as its due date, and the balance due upon closing. The agreement also provided for a closing date, and stated that the transaction was not subject to mortgage financing. The additional fact that the agreement stated that a more formal contract was to be signed does not render the purchase deposit agreement unenforceable".

Plus, a real estate salesperson owes their client duties of loyalty, accountability and the use of reasonable care so isn't the salesperson breaching those fiduciary duties to their client by having their client enter into a contract without knowledge of its binding effect and without advising them to utilize instead the twelve (12) page "RESIDENTIAL CONTRACT OF SALE Jointly Prepared by the Real Property Section of the New York State Bar Association, the New York State Land Title Association, the Committee on Real Property Law of the Association of the Bar of the City of New York and the Committee on Real Property Law of the New York County Lawyers' Association. (11/00)", which is supplemented by a tailored Rider by most attorneys in Downstate New York.

The Sales Agreement used by many on long island is hyperlinked.

As can be seen on the face of the agreement, it states: "THIS IS A LEGALLY ENFORCEABLE CONTRACT, YOU SHOULD CONSIDER WHETHER YOU WISH TO CONSULT YOUR ATTORNEY PRIOR TO SIGNING THE SAME". Further, the Sales Agreement contains an attorney approval clause, but such clause is waived unless the Sales Agreement is disapproved by a party's attorney within "3 business days after full execution thereof". Wouldn't it be smarter to just fill out the form without having any party sign the agreement and send the information to an attorney to negotiate within a formal contract of sale?

It comes down to this: Do real estate salespersons care more about the best interest of their clients when creating a meeting of the minds or would they rather mislead the clients that it's a good idea to be in a terrible contract just so that the salesperson feels more secure about receiving a commission?

You decide.

Thursday, June 04, 2015

Relative Matters: Thinking of Letting a Family Member Stay at Your Hamptons Estate?

If you are counting on rental income, you cannot let a relative stay at your place, even for the weekend.

Read Andrew Lieb's latest article in Behind The Hedges to find out why.

Wednesday, June 03, 2015

This Is What Happens When Your Neighbor's Falling Tree Damages Your House

Tuesday, June 02, 2015

Title Waves - Free Lieb School Continuing Education Class on 6/30/15 at the Omni Building in Uniondale



Instructor: Andrew Lieb, Esq

Date: June 30th, 2015 at the Omni Building in Uniondale

Course Summary: Did you know that approximately 25% percent of real estate deals have title problems?  This title insurance course will help you avoid dead deals due to misinformation throughout the transaction process. You will learn who the underwriting players are and how their respective roles can influence your deal. We will discuss the impact of unmarketable title with brokerage commissions.  Additional topics covered include liens and forgeries in the chain of title and what transpires in real life cases. This course will enable you to take preventative measures to accurately describe your listing and avoid terminal transactions.
Let’s prevent title issues from killing our deals.
CE Credits: 3
To Register: Login to Your Lieb School Account and Click "Enroll" or "Join Waiting List"




Monday, June 01, 2015

Making Home Affordable - New Handbook Available - Version 4.5

To access the new Handbook for MHA, inclusive of HAMP and HAFA, click here. While reviewing the Handbook you should be aware of the case of US Bank v. Sarmiento wherein the Court held that the statutory good faith standard for a CPLR 3408 Foreclosure Settlement Conference is whether the "totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution", including compliance with the Handbook. To review the case, click here.

This Handbook is the rules for banks / servicers to modify mortgages, so pay careful attention to detail and make sure that they comply.

Tuesday, May 26, 2015

Listen To Podcast Of Andrew Lieb Discussing The Legal Implications of Canine Defecation on Real Life 88.3 FM

Andrew Lieb discussed Neighbor Issues on Real Life with John Christopher on 88.3 WPPB Peconic Public Broadcasting.

Learn the legal implications of what happens when your dog defecates on your neighbor's property.

Listen to the podcast here. 

The Making Home Affordable Program (MHA) has been formally extended 1 year

The Making Home Affordable Program (MHA), has been formally extended 1 year, through December 31, 2016, by Supplemental Directive 15-04. The program has been widely successful in providing affordable alternatives to foreclosure for millions of homeowners nationwide, and the extension through 2016 will provide relief to the millions more who will be in danger of falling behind on their mortgages in the next year.

This extension applies only to mortgages that are not owned or guaranteed by Fannie Mae or Freddie Mac and for applications that are submitted to the Lender on or before December 31, 2016. Though it is not necessary to have a decision on the application for a loan modification, short sale, or deed-in-lieu by the end of 2016 to be eligible under the MHA program, the transaction must close on or before September 30, 2017 if the borrower would like to receive incentive compensation, such as relocation assistance, payments for successfully completing a short sale or deed-in-lieu, or payments for making timely loan modification payments. Since the amount of relocation assistance that Lenders must offer has increased from $3,000 to $10,000 for all HAFA (short sales & deeds-in-lieu) transactions closing on or after February 1, 2015, borrowers must be mindful of the deadlines so that they may be eligible to receive this increased amount to assist them in moving costs.

This Directive also amends the MHA guidebook to allow servicers to establish a cap on the amount that they will pay to release the second mortgage liens, as long as the cap is not less than $12,000. It establishes a floor amount that borrowers may receive from their primary mortgage lenders to assist them in closing on their short sales or deeds-in-lieu.


These amendments ensure that borrowers will continue to have access to adequate relief through the MHA program.

Thursday, May 21, 2015

Andrew Lieb Discusses Neighbor Issues and How to Resolve Them on Real Life 88.3 FM 5/22/15 at 5:30pm

Andrew Lieb Discussing "Top 10 Changes in Real Estate Laws of 2014" at Nassau County Bar Association (CLE Credit Available)

Attention Nassau County Bar Association Real Property Law Committee Members - Andrew Lieb, Esq. will be speaking on ""Top Ten Changes in Real Estate Law of 2014" at the Real Property Law Committee meeting on Tuesday, May 26, 2015 at 5:30p.m. in the Founders Room at the Home of the Association.

CLE credit is available.

Friday, May 15, 2015

5 Ways Rich People Save Money on Real Estate Transactions

Even the most affluent buyers and sellers want to save money on their real estate transactions beyond negotiating the sales price. Many find themselves shopping mortgage brokers for best rates, trying to negotiate commissions out of real estate brokers, or finding the attorney who charges the least. There are many other ways that real savings in real estate transactions are realized beyond squeezing your service providers and commoditizing their services. Instead, buyers and sellers should realize true savings by utilizing these five tips in real estate transactions.

Read Andrew Lieb's full article in The Huffington Post or Dan's Papers.


SCAR Proceeding Owner-Occupancy Requirement

The Court of Appeals recently held that a single-family home is not “owner-occupied” for purposes of qualification in a Small Claims Assessment Review (SCAR) when such home is occupied “by an owner’s relative but not by the owner” “during the relevant tax period.” In so ruling, the court limited SCAR proceedings’ availability to fact-patterns that clearly establish occupancy by the owner.

Read Andrew Lieb's full article published in The Suffolk Lawyer.

SCAR Proceeding Owner-Occupancy Requirement

Wednesday, May 06, 2015

Listen To Podcast of Last Week's 'Eye on Real Estate' Radio Show - Andrew Lieb Joined Panel

Estate Deals - Free CE from Lieb School at Newsday in Melville

Instructor: Andrew Lieb, Esq

Date: June 4th, 2015 at Newsday in Melville

Course Summary: Estate sales offer a unique opportunity to help the grieving by doing your job professionally. Starting with speaking the language of the Surrogate’s Court, this course will empower the real estate broker / salesperson to assist the Executor / Administrator in liquidating real property in order to satisfy debts of the estate. Additionally, disputes between beneficiaries and with the fiduciary, sales forced by the court, and foreclosures incident to the probate process will be discussed. Lastly, the student will be exposed to the overlay of brokerage and executor’s commissions where an Executor / Administrator is expressly exempt from the Real Estate License Law for Brokerage.

To Register: Login to Your Lieb School Account and Click "Enroll" or "Join Waiting List"

Thursday, April 30, 2015

Deal Killers - Don't Let Your Deal Die - Free CE from Lieb School at Viana Hotel in Westbury

Instructor: Andrew Lieb, Esq

Date: May 12th, 2015 at Viana Hotel & Spa in Westbury

Course SummaryYou get the client, spend months looking for the perfect deal, find it, negotiate it and send it to an attorney to close it. Then, what? It dies. Have you ever wondered if you could do anything differently to have more of your deals close? Learn some of the main reasons that deals die like issues with the Sales Agreement, Title, Escrow Deposit, Closing Date, Financing / Contingencies and the Seller’s Concession. Next, learn how to proactively save your deals and earn a commission. Knowledge is commission.

To Register: Login To Your Lieb School Account and Click "Enroll" or "Join Waiting List"

Wednesday, April 22, 2015

Consumer Step-by-Step Guide for the Mortgage Purchase Process

The Federal Government’s Consumer Financial Protection Bureau (CFPB) recently released a Home Loan Toolkit, a step-by-step guide through the mortgage purchase process, for consumer use. This is a must use tool for real estate professionals to create realistic expectations for their clients and customers. 

This toolkit helps consumers to:

  1. Calculate affordable monthly mortgage payments;
  2. Understand the importance of credit scores to obtaining better mortgages;
  3. Pick their mortgage type;
  4. Choose the best down payment amount;
  5. Shop with different lenders;
  6. Understand and know about issues that may arise;
  7. Choose a mortgage closing agent; and
  8. Understand the overall closing process.


This Home Loan Toolkit has fillable text fields, buttons, and list boxes, allowing consumers to update the toolkit as they work through the process. It is designed to be much easier and more accessible version of the existing Settlement Cost Booklet that is currently provided to consumers and should be used in connection with the new (and simpler) Loan Estimate and Closing Disclosure forms that will be effective on August 1, 2015.

Though creditors are required to provide the toolkit to all potential homebuyers, the CFPB encourages that real estate agents understand and provide this toolkit to their clients as well. The more informed the parties, the smoother the real estate transaction will go.

Tuesday, April 21, 2015

Does The Fair Housing Act Cover Disparate Impact Discrimination

Friday, April 17, 2015

Watch Andrew Lieb Discuss Top 10 Neighbor Issues - Video Clip Now Available!

Andrew Lieb, Esq discusses 10 secrets to dealing with neighborly disputes.


Tuesday, April 14, 2015

10 Secrets to Dealing with Neighborly Disputes

These are the top 10 legal issues that you may face with your neighbor and how they will be resolved, in court, according to the law. Perhaps, this article will show you that a private, non-legal, neighborly, agreed-upon resolution is a better option for your predicament than turning to the courts. Then again, perhaps not.

Read the published article written by Andrew Lieb, Esq. in Dan's Papers by clicking here.

Monday, April 06, 2015

Brookhaven hosting Free Tax Grievance Seminar

Tax Assessor James Ryan will be at the Manorville Fire Department at 14 Silas Carter Road on April 29, 2015 at 6pm.

Bring your questions as Grievance Day is May 19, 2015.

Wednesday, March 25, 2015

Employment Questions on Rental Applications – A Housing Discrimination No-No

Andrew Lieb's latest article has been published in The Suffolk Lawyer.

In January 2015, a new Human Rights law went into effect in Suffolk County, to wit: Local Law No. 25- 2014. While the Suffolk County Human Rights Law (hereinafter “SCHRL”) is similar to the Federal Fair Housing Act and the New York State’s Human Rights Law, the SCHRL now adds the protected class of “lawful source of income” to prohibited housing discrimination throughout the county; a protected class that does not exist in either the federal or state law.
To read the full article, click here.

Friday, March 20, 2015

JUST RELEASED: Lieb School's Sizzle Reel - Video Clips of Andrew Lieb Conducting Real Estate Trainings

Monday, February 23, 2015

Lieb School's 200th Class - Divorce Deals in Southampton 3/5/15

We are thrilled to announce the opening of our 200th Lieb School Class!

Divorce Deals: Selling the Marital Residence

Instructor: Andrew Lieb, Esq., MPH

Date: March 5th, 2015

Location: 230 Elm, Southampton NY

Click Here to Register

Class Description: Watch out! Here comes a headache, exposure to liability and impossible commissions. Ever work with divorcing spouses before? Then you know. Good luck getting them to agree on anything from sales price to showing dates while selling their homes or commercial properties? What happens when they start asking you to write letters about how their spouse is not cooperating on the deal? Ever get a call from their lawyers? How about when you get subpoenaed to appear and testify in their Contempt Hearing? What do you do? Where do your duties lie? What can you say and which documents can you provide?

A divorce can pull everyone and everything into its grasp. This course is designed to teach real estate agents how to navigate through all of the complexities of divorce deals from properly listing the property to procuring a purchaser and receiving commission in compliance with License Law.

Learn about the Domestic Relations Law’s concept of marital property. Prepare yourself to stay above the fray, make the deal, get paid and keep the divorcing clients responsive and cooperative along the way. Good luck.



Wednesday, February 11, 2015

Neighbor Issues: Your Neighbor is Operating a Business in the Residence Next Door

Your neighbor's commercial vehicle (with loud and colorful electrician advertisements throughout the truck) is parked on the street abutting your driveway every day. Crews meet for coffee out front every morning at 5 AM, prompt, in order to gather for their workday. Your spouse parks in your driveway and you have to park down the street. The morning noise drives you nuts and you can't take it anymore.

Regardless if the business is lawful, pursuant to the local municipal code (i.e., zoning code), New York's highest court has said that "no one may make an unreasonable use of his own premises to the material injury of his neighbor's premises".  Meaning, that there are no hard and fast rules in this field of law, which is called a private nuisance cause of action, but, instead, a trier of fact (i.e., judge or jury) must determine if a given business activity is unreasonable at the location where it is being conducted.

In determining if an activity is unreasonable, the following factors should be analyzed to assess the totality of the circumstances under which the activity is being conducted:

  1. The location of the property at issue;
  2. Who was at the location first, the complainant or the business operator; 
  3. The nature of the business' use of the property;
  4. An overall character assessment of the neighborhood where the activity is occurring;
  5. With respect to the injury claimed, how frequent is it occurring and to what extent or level is it occurring; and
  6. How, specifically, the business is effecting the complainant's enjoyment of life, health and property.

A private nuisance cause of action has been used to shutter the following types of business operations: raising and keeping of pigs, quarry operations, nightclubs, auto racetrack and open air concerts. In fact, the Courts of New York have held that a business cannot defend such an action by arguing that "the defendant's business or works is lawful, and is a great benefit, utility, and convenience to the public, and is rightfully carried on in a proper, suitable, and convenient place, and in a careful and orderly manner, and in the best and most improved manner". Such a defense is irrelevant.

So, if you wish to shutter the business, exercise your rights and make a claim that the business is a private nuisance to your use of your property, you can let a court decide if the activity should be stopped. Further, let a court decide if you should be compensated for your lost use and enjoyment during the time that the business operated. To establish your lost value, look to the diminished rental value of your property during the time that the business operated from what that value would have been if there was no such business existing during that time. Now, go live in peace and quiet.

Wednesday, February 04, 2015

Neighbor Issues: You May Be Entitled To Damages For Your Neighbor's Noxious Odors

Not only can the offensive smell be stopped, but damages may be available to you as the neighbor who has had to endure the offensive smell throughout its existence. In fact, the law in New York is not so extreme that it requires odors to adversely impact your health in order for you to have rights. Instead, you have a claim so long as the odors are unpleasant and offensive. Odors that typically give rise to these types of disputes are caused by chemicals, farms, factories, restaurants and the like. To stop the smell, the claim that you should bring is called a private nuisance cause of action and to win on such a claim you will have to demonstrate that your enjoyment of life and property has been rendered objectively uncomfortable based upon unreasonable activities causing the smell.

Specifically, the courts explain that the following five (5) elements must be proven to prevail on this claim:

  1. An interference substantial in nature
  2. Intentional in origin
  3. Unreasonable in character
  4. With a person's property right to use and enjoy land
  5. Caused by another's conduct in acting or failure to act

You should take note that you don't even have to be forced from your home by the smell in order to win on your claim. Instead, and even if you stay in your home, as long as your property experienced a diminution in its rental value during the course of the existence of the smell, you can recover that diminution in addition to having the smell's cause be stopped.

Shockingly though, secondhand smoke infiltration emanating from a neighbor's own home is almost never considered a private nuisance and no action can likely be brought to stop the smoke. The only exception to this rule, where smoking can be stopped, is when there is an express prohibition against smoking in residences within the locality where the neighbors reside. Such a rule prohibiting smoking can come from either a local statute / code or from a private contractual right existing in the house rules of an apartment building, cooperative apartment or condominium building.

So, before trying to stop the smoking check all county, town, city and village codes for such a law. Additionally, if you live in a multiple dwelling unit (i.e., an apartment), check the rules of the building contained within its house rules, lease, by-laws and/or operating agreement before proceeding. Knowing the rules will be the difference between winning and losing your case.

Wednesday, January 28, 2015

Neighbor Issues: Snow Removal, Repair and Maintenance on Shared Driveways

Unfortunately, the term shared is such an inexact state of being and only through first deciphering how the driveway is actually owned can the mutual obligations for maintenance be precisely determined.

To force your neighbor to share in the upkeep and maintenance of a driveway or, better yet, to force your neighbor to pay for the entirety of the driveway maintenance is a complex proposition. To do this, you should first look to the deeds for all of the properties sharing the driveway. Typically, the deeds will show how the driveway is owned. There is only a true sharing of the driveway when there is a separately deeded right for the ownership of the driveway, in addition to both neighbors’ ownership of their individual properties, and as such, the driveway is titled in the neighbors as tenants-in-common or joint tenants. In this situation the driveway can be thought about in the same terms that one would view a lobby of a condominium with respect to ownership responsibilities and permissive use.

The typical shared driveway is not generally owned by both neighbors jointly, as previously described, but, instead, one neighbor usually owns the driveway while the other neighbor will hold an easement to use the driveway, or a right of way over such driveway. Here, the owner of the driveway is considered to have the servient estate whereas the easement-holder is considered to have the dominant estate. The dominant estate has rights that exist on top of that of the property owner who must, in turn, moderate his own rights for the purpose of serving the dominant’s intended use. In consequence to the owner’s subordinated rights, and as New York’s highest court has explained, “[o]rdinarily, a servient owner has no duty to maintain an easement to which its property is subject”. Instead, the servient landowner only has a passive duty not to interfere with the rights of the dominant easement-holder. As a result, maintenance and snow removal would typically fall on the shoulders of the easement-holder (a/k/a dominant estate), by default, who has a corresponding duty to keep the easement in sufficiently good repair so as to avoid harm to the servient landowner’s property.

A properly drafted deed should obviate the need to understand these default rules because such a deed should spell out the respective duties and limitations of the parties’ rights with respect to the driveway. The deed should go so far as to speak in terms of the specific maintenance obligations of each neighbor by explaining if the dominant estate-holder’s rights are just to use the easement as a passageway, or, instead, if the dominant estate-holder can maintain the easement with such things as plantings, fencing, paving, etc. A properly drafted deed should allocate the costs and decision-making powers of the neighbors so that there is no ambiguity as to the neighbors’ ability to co-exist into the future. More particularly, the deed should unequivocally state if the servient landowner is completely excluded from use of the driveway existing for the benefit of the easement-holder, or if both the servient and the dominant estate can use the driveway in a shared manner. The latter being the default rule if the deed is silent as to this issue. In such a situation and absent an express agreement to the contrary, all persons benefited by an easement must share ratably in costs of its maintenance and repair.

Assuming that both the servient and dominant estates actually utilize the driveway, the ownership rights will be looked at as an easement-in-common by a court when allocating the costs of maintenance. As a consequence either neighbor can take initiative to maintain the driveway. However, a neighbor can only look to the other to share ratably in its repair if that neighbor, who is undertaking the repair, gave the other neighbor both adequate notice of the repair issue sought to be addressed and a reasonable opportunity to participate in deciding how the repair is made. Thereafter, the neighbor, who is undertaking the repair, must ensure that the repairs were performed adequately, properly and at a reasonable price. Failure by the neighbor, who is undertaking the repair, to satisfy any of these obligations will prove fatal in any subsequent claim upon the other neighbor to share in the cost of maintenance of their shared driveway.


If you don’t have an agreement concerning the maintenance of a shared driveway with your neighbor, before going to court, you should invite your neighbor to enter into such a private agreement and thereafter file it with the deed, at the county clerk’s office, as a covenant and restriction that runs with the land. This type of agreement will not only avoid your instant conflict with your neighbor, but it will also prevent future neighbors who are living at your properties from existing with the same type of ambiguity, as to the rights and responsibilities for driveway maintenance, that created your conflict in the first place. As a consequence, it will enhance your property’s value.  

An Eruv in the Village of Westhampton Beach May Bring in More Real Estate Sales and Rentals

A public utility company is permitted to enter into an agreement with a private Jewish group to erect displays of religious significance on the utility poles said the courts on January 6, 2015. 

In 2008, there was discussion of putting up an eruv in the Village of Westhampton Beach. An eruv is a religious boundary that permits observant Jews within the enclosed space to carry and push items on the Sabbath, which, under ordinary circumstances, is forbidden. This boundary is usually established by attaching strips of woods to telephone poles around the community, thereby requiring private contracts with telephone companies.

A religious group called the Jewish People for the Betterment of Westhampton Beach (or JPOE) sued the Village of Westhampton Beach to oppose the erection of the eruv, arguing that it was a wrongful exception to Jewish practices on the Sabbath and that the government, which was contracting with private parties to establish the eruv, was overtly endorsing one sect of religion over another.

Courts said on January 6, 2015 that it is lawful for public utility companies to erect eruvs as part of a contract with a private party. LIPA’s contract to erect an eruv using its telephone poles was neutral and did not establish a noticeable and overt display of religion throughout the town. In fact, no reasonable observer would conclude from the strips of wood on the utility poles that the government was endorsing one religion over another. Furthermore, since private parties had agreed to finance, install and maintain the strips on the utility poles, there was no excessive government entanglement with religion.

This decision is a victory for religious freedom as a fundamental First Amendment right but is also a victory for real estate in the area. As the strips of woods on the telephone poles are not very noticeable, they will not in any way diminish the appearance of the community. In fact, real estate sales and rentals may skyrocket in the Village of Westhampton Beach now since observant Jews will seek out the community for its eruv. 

Tuesday, January 27, 2015

What Affluent Renters Consider Before Securing a High-End Summer Home in the Hamptons

It's imperative to realize that the east end of Long Island is a massive place. It's over 30 miles from Westhampton to East Hampton on the south fork and not that much shorter on the north fork between Riverhead and Orient. As a result, the experience of summering on Shelter Island as opposed to staying in Southampton is drastically different. The fact is that each community on the east end has its own unique offering of features that are "fabulous" to some and that represent "shortcomings" to others.

Read the full article in the Huffington Post.

Top 5 New Real Estate Laws Affecting NYers in 2015

Now that 2015 is here, NYers should know the top changes from the past year in real estate laws that affect property owners and tenants in our community. This is not a list about the best events from 2014, but, instead, a list that highlights the new legal landscape that you face in 2015.

Read the full article in The Huffington Post.

Monday, January 26, 2015

10 Questions to Ask Yourself About a Summer Rental

Andrew Lieb's latest article is now available on Dan's Papers.

Keep these tips handy when planning your seasonal rental search.

Wednesday, January 21, 2015

Ocwen Financial May Lose its Mortgage License

By the end of this year, Ocwen Financial, one of the largest mortgage servicers in the U.S., may lose its mortgage license in California.

Ocwen has been subjected to numerous investigations over the years regarding improper foreclosures, misplaced and mislabeled borrower documentation, billing issues, and overall failure to comply with federal and state laws and regulations. In December, Ocwen settled an ongoing investigation by the NYS Department of Financial Services (DFS) by agreeing to pay $100 million, which was to be used to support foreclosure defense programs and other relief and $50 million to Ocwen borrowers who reside in New York. As a result, not only did the company’s chairman step down from his position, but DFS will continue to monitor Ocwen in the upcoming years for further unlawful conduct. Although this settlement greatly impacted borrowers in New York, it was held as a victory for borrowers all over the country because it was supposed to put Ocwen in check and to stop it from continuing its cycle of financial abuse.

Unfortunately, the story does not end there. California now wants to suspend Ocwen’s mortgage license in the state as a result of Ocwen’s failure to provide mandatory documentation to the Department of Business Oversight, which is responsible for determining whether Ocwen is complying with state regulations in California. Ocwen issued a press release on January 13, stating that it is committed to resolving the issues in California, especially since its shares are crashing as a result of the news. It is crucial that Ocwen turns its business practices around and finally provide high quality assistance to its borrowers. Otherwise, it will surely fail.

Settlement conferences will begin in February. If nothing is resolved, Ocwen will not be able to do business in California for at least a year. If that happens, Ocwen may not be able to survive such a huge blow.

Tuesday, January 20, 2015

Enrollment is Now Open for Property Manager Liability: Requirements, Responsibilities and Fair Housing on 2/6/15 in Plainview



Property Manager Liability: Requirements, Responsibilities and Fair Housing


Instructor: Andrew Lieb, Esq., MPH

CE Credits: 3

Price: Free

Date: 02/06/2015 at 1:30pm in

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.
*** THIS COURSE SATISFIES THE ONLY MANDATORY CLASS REQUIREMENT FROM THE DEPARTMENT OF STATE (DOS) FOR AT LEAST 3 HOURS OF INSTRUCTION PERTAINING TO FAIR HOUSING AND / OR DISCRIMINATION ***

Wednesday, January 14, 2015

Lieb School is Back in NYC with Estate Deals CE on 2/12/15




Estate Deals

Instructor: Andrew Lieb, Esq., MPH

CE Credits: 3

Price: Free

Date: February 12th, 2015 at 12:30pm on 51st (between 5th and 6th)

Estate sales offer a unique opportunity to help the grieving by doing your job professionally. Starting with speaking the language of the Surrogate’s Court, this course will empower the real estate broker / salesperson to assist the Executor / Administrator in liquidating real property in order to satisfy debts of the estate. Additionally, disputes between beneficiaries and with the fiduciary, sales forced by the court, and foreclosures incident to the probate process will be discussed. Lastly, the student will be exposed to the overlay of brokerage and executor’s commissions where an Executor / Administrator is expressly exempt from the Real Estate License Law for Brokerage.

Register For This Class Here