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Real Estate Law Blog

Blog

COVID-19 UPDATE

Posted on March 21, 2020 at 6:52 PM Comments comments (606)
COVID-19 Update:

At the Law Office of Jeanne Reardon, the health and safety of our staff and clients is our top priority.  Since you rely on us for your legal needs, we remain ready to help you in this difficult time as we face many health and financial challenges.  Accordingly, we are taking a number of steps to minimize health risks during this health crises while serving our current clients as well as new clients coming on board.

Our law firm will be adhering to the guidelines presented by the Centers for Disease Control and our local health officials, and we continue to monitor them for updates as they are released. We have implemented a plan to protect the safety of our work environment while allowing us to continue to service all of our clients.

We are taking precautions with respect to non-essential meetings and face-to-face interactions. That includes telephone consultations and conference calls whenever possible. With respect to our real estate practice, we will endeavor to utilize Powers of Attorney, pre-signed deeds, and Escrow Closings, where available, in order to close title when the transaction permits us to do so.

Do not hesitate to contact us if you have any questions or concerns regarding your current real estate transaction or if you are just getting started and are looking to hire a real estate attorney for an upcoming sale or purchase of a home.  As always, we are committed to handling our clients' matters with the utmost care and respect, and are available to assist both current and new clients.

We hope that you and your family remain safe and healthy!

Jeanne Reardon, Esq.

What does the "on or about" closing date in my contract to purchase a home mean?

Posted on October 30, 2018 at 12:24 AM Comments comments (65)
The standard residential contract of sale used by attorneys in the New York Metropolitan area will often state that the closing will take place, for example, “on or about December 1, 2018.”  In New York, unlike many other states, the “Closing Date” contained in the contract, especially if the words “on or about” precede it, is a fluid date.  It is rare that a closing actually occurs on the date specified in the contract. The phrase “on or about” has been interpreted by the New York courts to mean that either side has a reasonable period beyond the “on or about” date in which to close.

If all progresses on schedule, a closing can usually occur within 60 days after the contract has been fully executed by the seller and purchaser. However, not all real estate transactions proceed as planned.  While many of the transactions do eventually close (unless a buyer is unable to obtain financing or an appraisal comes in too low), there are some that do end up in a dispute or litigation.  If a party is unwilling to close within a “reasonable” time after the closing date, many times, before litigation is commenced, the attorney for the party wishing to close can send what is referred to as a Time of the Essence Letter (“TOE Letter”) to the other party.  That letter will set forth a new closing date stating that “time is of the essence.” If the party receiving the letter does not close by that date they can be declared in default under the terms of the contract of sale.

It is important to note that the “time of the essence” standard is not a statutory standard but rather one established by the courts and case law, and is constantly changing depending on each case that is decided by the courts.  While the courts are silent as to what constitutes a “reasonable” time, many real estate attorneys practicing in the New York Metropolitan area have come to a consensus that “reasonable” is generally about 30 days.  However, the case law has explained that the other party must be given a reasonable time in which to act and what amounts to a reasonable time to perform depends on the circumstances of the case.

Whether dealing with a TOE Letter or an “on or about” closing date, the closing date and closing time frames can quickly change and extend far beyond the “on or about” closing date depending on the circumstances.


Real Estate Contract Mortgage Contingency Clause

Posted on September 30, 2018 at 5:50 PM Comments comments (40)

Most people obtain financing when purchasing a house, condo, or co-op.  In that case, the contract of sale will contain a mortgage contingency clause making the sale contingent upon the buyer obtaining a mortgage in a certain amount.  If the buyer's loan application is denied by the lending institution, the buyer can then cancel the contract and get the down payment back.

In order to benefit from the protections allowed by the mortgage contingency clause the buyer must strictly abide by all its terms, i.e. the buyer must only apply for a loan in the amount stated in the clause (or such lesser sum as buyer shall be willing to accept), and obtain the mortgage within the time frame given in the clause.  If the buyer applies for a loan greater than the amount stated in the clause and is then denied a loan, the buyer will have forfeited the protection afforded by the clause and will not be able to cancel the contract.  If the buyer is then unable to obtain other funds to complete the purchase the buyer will be in default under the terms of the contract and more than likely lose their down payment.  On the other hand, if the buyer is approved for a loan greater than stated in the mortgage clause, then no problem.  Nonetheless, I  would never advise a client to take such a risk and put their down payment in jeopardy.  There are many reasons why the loan may be denied that have nothing to do with the financial qualifications of the buyer and are beyond the buyer's control.  An experienced real estate attorney will help you navigate through this process.

The mortgage contingency clause is there to protect your down payment should your loan be denied.  To best protect yourself when purchasing a home with a mortgage, hire an experienced real estate attorney who fully understands all aspects of the mortgage contingency clause and will guide you through the entire closing process.

To speak with an experienced real estate attorney, call us at (516) 314-8433.  To learn more about our services and how we can assist you, visit us at www.jreardonlaw.com

Joint Ownership of Real Property in New York

Posted on May 13, 2018 at 6:21 PM Comments comments (71)
Joint property ownership can be a great solution for people who want to own a home, especially for first-time buyers. But joint ownership can limit your rights and options -- not only while you own the property, but also when you want to transfer ownership to an heir or another buyer. There are three major forms of joint property ownership (or "concurrent ownership") -- tenancy in common, joint tenancy, and tenancy by the entirety.


Tenancy in Common (TIC)

Tenancy in common (sometimes called a "TIC") is the most popular form of concurrent property ownership. Tenants in common (or co-tenants) each own an equal share of a piece of property -- whether it's a house, an apartment building, or other type of real estate. This generally means that each co-tenant has an equal right to possess or use the entire property, and that the rent or maintenance costs of the property are shared among the co-tenants according to their ownership interest. Each co-tenant also possesses a share in the value of the property as it appreciates.

Real estate owned by one or more persons as tenants in common gives a percentage ownership to each person, and upon that owner’s death, their percentage share goes to their estate. If they have a will, it goes to the persons named in their will. If they die without a will, then it goes to their legal heirs-at-law. With this type of ownership, each owner has the right to transfer their share during their lifetime, without obtaining the permission of the co-owner. If the deed is silent as to form of ownership, then there is a presumption in the law that the parties own as tenants in common.   Any co-tenant has the right to live in the premises without paying rent to the other owners, and every co-tenant may be entitled to credits for items such as taxes, maintenance and repairs. If the premises are rented to a non-owner, all co-tenants would be entitled to share in the rent. 

A co-tenant can transfer interest in a tenancy in common to another buyer or to an heir -- via a will, for example. A co-tenant can also mortgage a share in the property. What a co-tenant cannot do is transfer or sell the other co-tenants' interests in the property. Once a co-tenant's interest in a tenancy in common is transferred, the new owner steps into the shoes of the co-tenant seller and becomes a tenant in common with the other co-tenants.


Joint Tenancy

Joint tenancy is sometimes called "joint tenancy with right of survivorship." Joint tenancy ownership implied that a joint tenant lost all interest in their property when they died. The deceased person's interest was automatically transferred to the other joint tenant.  Thus, in a joint tenancy, the last surviving joint tenant owned all the property outright.

If you want to create a joint tenancy or take possession of property as joint tenants, make sure that your lawyer or real estate agent is very careful about the phrasing in the deed or will. In general, courts prefer very specific wording that shows the desire to create a joint tenancy and the right of survivorship and not a tenancy in common. For example, a deed or will might include instructions that read "to A and B, as joint tenants with a right of survivorship, and not as tenants in common."

Sometimes, under state law, a joint tenancy will automatically convert to a tenancy in common. For example, if joint tenants die simultaneously, their property is treated as a tenancy in common by the courts, for purposes of inheritance and estate distribution. And if two or more people inherit property from a last surviving joint tenant, they do so as tenants in common instead of as joint tenants.


Tenancy by the Entirety

The third form of ownership -- tenancy by the entirety -- is only available to a married couple who owns a piece of property together.   The couple must be married at the time they acquire the property and must remain married in order for the tenancy by the entirety to be valid.  If a married couple divorce after taking title to the property as tenants in entirety, they then become tenants in common.

The deed should recite the names as follows: “John Doe and Jane Doe, husband and wife” or John Doe and Jane Doe, his wife.” If silent, it is presumed that a married couple has taken as tenants by the entirety. Not all states recognize tenancies in entirety -- but those that do often presume that a grant of property to a husband and wife automatically creates a tenancy by the entirety, unless some other type of ownership is specified.  If a different form of ownership is desired between a husband and wife, then it must be specified as either tenants in common or joint tenancy with right of survivorship.

Under a tenancy by the entirety in New York State, upon the death of one spouse, the other spouse owns the property free and clear of any encumbrances that may have been caused by the other spouse. Thus, if one spouse sells or mortgages the survivorship interest to a third party, the third party will get only a contingent interest.  For example, where the husband conveys or grants a mortgage to a third party, the third party will get nothing if the husband predeceases the wife.  It the wife dies before the husband, the third party will own the property outright, or will have an enforceable mortgage on the husband’s full fee interest.  Neither spouse can disinherit the other spouse by leaving the property to someone else in their will.

The Law Office of Jeanne M. Reardon assists New York property owners with strategies to protect and pass on their homes and real estate investments. To speak with an experienced New York deed attorney, call us at (516) 314-8433 or e-mail us. To learn more about our deed transfer services visit us at:  www.jreardonlaw.com/Deed-Transfer.html

New TRID Rules

Posted on April 2, 2017 at 10:30 PM Comments comments (38)
On October 3, 2015, the Consumer Financial Protection Bureau’s (CFPB) new mortgage disclosure law, also known as the TRID went into effect. TRID will help consumers be more informed regarding the closing cost.

Here are 11 things you should know about the new law:

1. Initial Good Faith Estimate (GFE) and Truth in Lending disclosure (TIL) are now combined into one new form called the Loan Estimate (LE).

2. Instead of the old forms such as the HUD-1 and Final TIL we now have the Closing Disclosure (CD). Most major lenders will prepare the CD for the borrower; some however may rely on settlement agents. The new form will describe the loan terms, projected loan payments, closing cost at closing, loan features such as assumption, escrow details, borrower’s liability at foreclosure and others. The Sellers will also have a CD statement.

3. The CD will be provided by the Lender to the consumer/borrower at least three days prior to the scheduled closing date but can be waived if consumer has a “bona fide emergency”.

4. The Lender will now provide the borrower with list of closing service providers so that they can shop for services.

5. If the following changes occur then a new CD must be issued with an additional 3 day waiting period:
  • APR changes 1/8 of a percent
  • Pre-payment penalty added to your Note
  • Loan is changed from fixed to variable, negative amortization

6. Closing fees subject to zero tolerance unless otherwise excepted.
  • 10% tolerance for charges paid to third parties-charges cannot increase by more than 10%
  • no tolerance-charges can increase without limits if originally disclosed
  • 0% tolerance- charges cannot increase at all

7. How do you determine what category you fall in?
  • Does lender allow borrower to shop for the third party services? If third party provider is on the bank list, there is a 10% tolerance, if not on the list there is no tolerance.

8. Fees that can’t increase:
  • fees to brokers or creditor
  • charges to an affiliate of broker or creditor
  • charges to an unaffiliated third party – if consumer not allowed to shop
  • transfer taxes

9. Any variation of the above must be refunded no later than 60 days after closing.

10. Seller will receive CD by or at closing. This will be prepared by the bank attorney in addition to the statement provided by the Seller’s lawyer.

11. TRID will not apply to: HELOCS, Reverse Mortgages, Commercial Loans and lenders who make 5 or less loans per year.

The Closing process will be more organized, with all the numbers worked out about a week prior to closing so there are no surprises on the closing day.
 

A Strong Contract Lays the Foundation for a Successful Real Estate Transaction

Posted on January 22, 2017 at 3:43 PM Comments comments (61)
Buyers and sellers involved in a residential or commercial real estate transaction have different issues and goals. The real estate contract or purchase agreement is the single most important document in the transaction. A well drafted contract that accurately reflects your interests and addresses potential problems is critical to a successful real estate transaction.  At the Law Office of Jeanne M. Reardon, we have more than 20 years of experience negotiating, drafting and reviewing contracts.

A strong, well drafted contract provides the protection you need by anticipating and minimizing the risks involved in buying and selling real estate.  Jeanne M. Reardon has the knowledge and experience that it takes to negotiate and draft real estate contracts that aim to protect her clients' interests, their down payment and lessen their overall risks.  

The standard New York real estate contract does not ordinarily include all the nuances of your particular transaction.  Usually the real estate broker will submit the basic terms of the deal such as purchase price, down payment, financing terms and nothing more.  Only an experienced real estate attorney will have the knowledge to anticipate all the issues at hand and ensure that they are properly addressed in the drafting and negotiating of the real estate contract. 

Some issues that an experienced real estate attorney will anticipate and aim to have addressed in a contract include:

  • Additions or renovations to the property with missing certificates of occupancy
  • Willful or negligent loss of the down payment by the seller's attorney
  • Underground oil storage tanks
  • Death of the purchaser prior to the closing

Attorney Jeanne M. Reardon is licensed to practice in New York, and she has extensive experience in handling real estate contracts, including Fannie Mae REO contracts. 

Contact a Skilled Long Island Real Estate Attorney

Whether you are buying or selling your home, please do not enter into a contract before contacting our office because no standard contract can adequately address all the special circumstances of your transaction.

Our services can help to protect your interests, and save you time and money.

We provide a free initial consultation to all of our potential clients. To discuss your real estate issue with an experienced Long Island real estate lawyer call 516-314-8433 or e-mail us.


Why You Need a Real Estate Lawyer When You Buy or Sell a House

Posted on May 17, 2016 at 11:06 PM Comments comments (48)
Whether you are buying or selling a home, your team of expert advisers should include a real estate closing attorney.  Real estate closings  are complicated matters and require a thorough knowledge of the law.  With a decision as serious as buying and selling real estate, it is important that you are guided throughout every step of the closing process by an experienced and knowledgeable real estate lawyer.  The purchase of a home is often the single largest financial transaction you will ever make in your life. Why not ensure that all your bases are covered by retaining a closing lawyer to represent your interests and guide you through the process.


How a Closing Lawyer Can Help

The real estate attorney performs many time consuming tasks preparing for a closing.  A real estate closing involves a series of complex phases: contract drafting and negotiation, document review, examination of the title, completion and explanation of legal documents, and resolution of any possible title difficulties.  An experienced real estate attorney oversees the entire process so that you are not overwhelmed by the paperwork involved, the disclosures that need to be made, inspections, loan documents, title insurance and affidavits, and unforeseen issues that can suddenly turn a sure sale into a disaster.


Drafting and Negotiating the Contract of Sale

Since real estate attorneys have sophisticated experience with many types of real estate transactions, it is prudent for a buyer or seller to ask their real estate lawyer to negotiate the terms and conditions of their real estate deal. Once the negotiations are complete, the real estate attorney drafts the real estate contract, also known as the Contract of Sale, which incorporates all the terms of the transaction as negotiated. There are also other numerous documents associated with a real estate closing. It can be hard to review and understand all of them. Missing even one clause can change an entire legal document so it is important to have a trained real estate attorney aid in the process so that no issue is overlooked and everything is done in your best interest.


Title Issues

A real estate attorney examines the title records for prior conveyances, unpaid mortgages, liens, judgments, easements, and other encumbrances and clouds on title. They verify that the seller has the authority to convey a good title to the property and that no errors exist in the deeds in the chain of title.


Closing Documents

A real estate attorney prepares all relevant information into one set of closing documents.  A closing statement should be prepared prior to the closing indicating the debits and credits to the buyer and seller. An attorney is helpful in explaining the nature, amount, and fairness of closing costs. If the attorney is representing a seller, the attorney would also prepare the deed and state transfer tax documents.  At the closing, the attorney provides detailed explanations of the documents to insure that the parties understand all issues involved in the transaction and the disbursement of the funds.    


Attend the Closing

The actual closing day is the most important phase in the purchase and sale transaction and having a real estate attorney there to represent you is critical. Title passes from seller to buyer, who pays the balance of the purchase price. The deed and mortgage instruments are signed, and your attorney can assure you that these documents correctly reflect all the terms of the transaction and are appropriately executed. There may also be last minute disputes about issues arising during the final walk-through and delivering possession or the adjustment of various costs, such as fuel and water. If you are represented by an experienced real estate attorney you can rest assured that these issues will be properly addressed and your interests protected which might not necessarily be the case if you are not represented by an attorney.


Retain Closing Lawyer Jeanne M. Reardon

Jeanne M. Reardon is a Long Island real estate attorney who has handled thousands of closings during her over 20 years of practice. She has dealt with any possible issue that may arise in a real estate transaction and will advise you regarding your selling or purchasing of a home during each step and phase of a real estate transaction. Call her today if you plan to sell or buy a home in the Long Island or the Greater New York area at (516) 314-8433.
 







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