Are you going to be unavailable to attend your real estate closing? Will you be going into a complicated surgery and want to ensure someone will be able to act on your behalf?  These are common situations in which people execute power of attorney (POA) contracts.

A POA is a legal contract where you, the principal, grant an agent the authority to make decisions on your behalf.  A POA creates a “fiduciary relationship” where an agent is bound by law to act in your best interest.  You choose the scope of authority given to an agent and you should always take precautions to define this clearly in any POA contract.

Before September 1, 2009, there were different forms a principal would have to execute depending on when he/she wanted the POA to go into effect, the scope of the POA, whether or not it would be revoked if the principal became incapacitated, etc.  Now there is one form, the New York Statutory Short Form Power of Attorney, you as principal need to fill out and execute in order to grant a POA.  On this form you can modify it in several ways including limiting the agent’s power, controlling when the POA goes into effect and whether it stays in effect in the event you become incapacitated.  However, under the NY Statutory Short Form POA, the agent cannot make health care decisions for you. In order for the agent to make such decisions, you and the agent will have to execute a Health Care Proxy.

Usually, in New York, a POA does not need to be recorded with the County Clerk’s office unless it is being utilized in a real estate transaction.

POAs can be a very helpful and effective estate planning tool but they must be drafted carefully and it is crucial that each principal have a clear understanding of his/her rights under the POA.

James G. Dibbini & Associates, P.C., collectively, has over 20 years of experience preparing and executing POA contracts. If you need help with your POA or other areas of life and estate planning, give us a call at (914) 965-1011 or email us at jdibbini@dibbinilaw.com to learn more.

Day after day, month after month, and year after year we are planning – planning meetings, planning our anniversary celebration, planning a birthday party, planning that vacation.  When it comes to being prepared for our death, however, and making preparations for caring for loved ones after we are gone, we are breathtakingly unprepared.  While we all recognize the importance of planning for when we pass, it is estimated that over 60% of adults in the United States do not have a will and/or advanced directives in place.

Executing a will and advanced directives (living will, health care proxy and power of attorney) is the first of many steps in terms of planning your estate.  In this newsletter, we are going to discuss what a will is, why it is important and why you should have an attorney draft it for you.  We will go into more detail about the advanced directives and other estate planning techniques in upcoming newsletters.

What is a will?

A will is a legal document in which the “testator” (the person making the will) sets forth how the testator’s property is to be distributed at death and to whom the property should be distributed.  A will also allows the testator to appoint one or more persons to manage the testator’s estate and carry out the testator’s wishes.  A will must be drafted and executed in accordance with the New York Estate, Powers and Trusts Law (New York EPTL) or it may be deemed invalid, especially if someone challenges it.

Why do I need a will?

Any adult should have a will in place.  Having a will is important because it allows you to have control over the distribution of your assets after death.  If you do not have a will, then your estate will be distributed according to the New York EPTL, which may not exactly be how you would desire your assets be distributed upon your death.

If you should pass while your children are still minors (underage), a properly drafted will could place your assets into a Testamentary Trust, which could provide for your children’s care until they are adults and/or could protect the assets against creditors.  In addition, should a minor child survive you, the Surrogate’s court will appoint a guardian to the minor.  While the Surrogate’s Court decides who to appoint as guardian, your wishes as to who should be appointed guardian, if stated in a will, is considered by the court.

Your will also states who will be the person that oversees the distribution of your estate and ensure that your wishes are carried out.  This person is known as the “executor” of your estate and is appointed by you through your will.  Without a will, anyone with an interest in your estate under the New York EPTL may petition the Surrogate’s Court and ask to be appointed to oversee your estate and assets.  This may lead to litigation should multiple individuals ask to be appointed to oversee your estate.  The more litigation surrounding your estate, the more estate assets will be used to pay legal fees and court costs.  Having a will in place may alleviate some of the expense and complexities of administering your estate through the Surrogate’s Court after you are gone.

Why should I have an attorney draft my will?

The New York EPTL is very specific about how a will must be drafted and signed, and a few of the requirements that must be strictly adhered to include: the testator must be 18 years of age or older (or a lawfully married minor); the testator must be of sound mind; the will must be in writing and signed at the end by the testator; and there must be two witnesses to the execution of the will.

There are plenty “do-it-yourself” legal websites that claim to provide drafting services and the legal documents you need for your will.  However, if your will is not in strict compliance with the New York EPTL, it is invalid and your estate will be administered as if you do not have a will.

Proper drafting, execution and compliance with New York EPTL requirements are just a few of the many reasons why we, as your attorney, can ensure that you have a will that is acceptable by the Surrogate’s Court, will be difficult to contest, and adequately sets forth your wishes as to how your estate should be distributed to your loved ones.  Practicing wills, trusts and estates law, James G. Dibbini & Associates, P.C. has the experience, knowledge, and expertise to navigate you through the complicated and overwhelming wealth of laws, cases and information on wills and other estate planning matters.  If you need a will and/or advanced directives drafted, or you have any questions regarding a will, trusts and estates matter, let us help you.  Give us a call at (914) 965-1011 or email us at jdibbini@dibbinilaw.com to schedule a consultation.

This James G. Dibbini & Associates, P.C. Newsletter is a publication of James G. Dibbini & Associates, P.C. All Rights Reserved. Quotation with attribution is permitted. This newsletter offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that James G. Dibbini & Associates, P.C. does not undertake to update its publications after their publication date to reflect subsequent developments. Prior results do not guarantee a similar out- come. This publication may contain attorney advertising.

One issue our landlord clients frequently raise is that of dogs and under what circumstances a tenant can be allowed to keep a dog in their apartment in violation of terms of their lease.  This topic invokes important Federal, State, and County law*, such as the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA) and the New York Human Rights Law.  A landlord’s compliance with provisions regarding so-called “service animals” is crucial as failing to do so can open a landlord or management company to claims of discrimination and expensive, unnecessary litigation.

Lease clauses prohibiting pets in apartments have consistently been held to be enforceable by New York courts and it is well established that such terms are useful to landlords and building management. Pets, especially dogs can cause damage to property through shedding; scratching; and through owners’ failure to properly dispose of their dog’s excrement and urine.  Dogs with violent propensities can also threaten the safety and well-being of other tenants by biting, scratching, or jumping, and can create a nuisance through loud and annoying barking.

New York and Federal law are, however, permissive in allowing certain tenants to have service dogs in an apartment despite lease terms to the contrary, so long as the tenant meets certain criteria.  The law in this area views the service animal issue through the lens disability rights and landlords’ responsibility to provide “reasonable accommodations” to individuals with disabilities.  Consequently, compliance with the service animal laws is strictly enforced and failure to comply—intentional or not—could result in government fines and/or being sued for disability discrimination.

For a tenant to be entitled to have a service dog in the home the tenant must suffer from a disability, have a dog that is trained to provide service, and that service must be related to the person’s disability.  There are also additional protections for individuals who train service dogs.  One of the main issues landlord’s face is when they suspect that a person does not in fact have a disability or that the dog is not in fact a “service animal.”  Unfortunately, for landlords in this situation, the questions they can ask and inquiry they can make is extremely limited and landlords must be very cautious so as not to violate anti-discrimination laws.

When a tenant alleges that they have a service dog because of a disability and that person’s alleged disability is not apparent, a landlord may only ask two specific and narrow questions to determine a service dog’s eligibility: 1) whether the dog is required because of a disability; and 2) what work or task the dog has been trained to perform.  Whether the tenant is being truthful or not, if the tenant answer these questions such that it invokes disability discrimination protections, the landlord must immediately stop asking question or face liability.

It is important to mention that a landlord may not ask for documentation of the disability or even for specifics as to what the disability is, may not require documentation to prove the dog’s training, and may not request the dog demonstrate its ability to perform the work for which it is trained.  Such questions and requirements could be determined to be direct violations of disability discrimination laws.

A tenant who adequately answers the questions cannot be charged an additional fee for having the service animal, nor can they be treated any differently from tenants who do not have service animals.  However, a landlord may require a tenant to pay for damages caused by their service animal if such is specified in the lease.  A landlord may only ask a tenant possessing a service animal to remove it from the property if the dog is out of control, such as biting, or if the dog is not housebroken.

In certain circumstances it is possible to require and obtain additional information regarding a purported service animal, but landlords should be cautious when requesting such follow-up information and should do so through someone knowledgeable in the area.  If you have any questions, would like further clarification or have an issue with a tenant keeping an unauthorized pet in their apartment, contact James G. Dibbini & Associates, P.C. at 914-965-1011 or visit our website at dibbinilaw.com.

Increase in Rent Deregulation Threshold for 2016

As of January 1, 2016, the rent deregulation threshold was raised from $2,500 to $2,700 pursuant to the Rent Act of 2015.  This means that a rent stabilized or rent controlled apartment can be deregulated, and therefore no longer subject to the Division of Housing and Community Renewal (DHCR), if it is vacated and the rent or increased rent from the vacancy is $2,700 or higher.

Additionally, an apartment can be deregulated without a vacancy if rent is equal to or exceeds $2,700 and if the tenant’s total annual income for the two preceding years exceeds $200,000.  The tenant’s income is self-reported through Income Certification Forms (ICFs).  The threshold of $2,700 only applies to apartments in New York City; the threshold is $2,733.75 for Nassau and Rockland Counties and $2,747.25 or $2,737.80 in Westchester County, the lesser if the tenant pays for heat or hot water.

* The Counties that make up New York City as well as Westchester County and others have separate and distinct dog laws pertaining only to their geographic areas.  This issue will be explored in a future newsletter.

If you have any questions about rent deregulation, would like to speak to an attorney about ways to have an apartment deregulated, or have an issue with DHCR registration or Fair Market Rent Appeals by tenants, contact James G. Dibbini & Associates, P.C. at 914-965-1011 or visit our website at dibbinilaw.com.

In today’s internet age, there are legal Do-It-Yourself guides and websites everywhere.  However, when it comes to commercial real estate leasing, don’t do it yourself.  Renting commercial space is a big responsibility.  While there are commercial lease forms everywhere, commercial leases should be tailored to meet the individual’s needs.  As such, there should be more negotiation between the landlord and the tenant.  Ultimately, trying to “do it yourself” could cost you more than you bargained for.

There are different types of commercial leases, with each containing numerous terms and conditions and specifically customized for different types of properties (retail lease, store lease, office lease and industrial lease).  In this newsletter, we will provide a broad overview of commercial leases.

What is a commercial lease?

A commercial lease is a contract between a landlord and tenant that lays out the parties’ rights and responsibilities, as well as the property being leased and what it is being leased for.  Each commercial lease is complex and contains many terms that address the various rights and obligations of the landlord and the tenant.  Some of the major terms found in a commercial leases are the following:

• Rent (how much money?)
• Additional rent (real estate taxes, common area maintenance, water, late fees)
• Security Deposit
• Term of lease (amount of time)
• Guaranty (is the tenant personally guaranteeing the lease)
• Use of the property (what can the property be used for?)
• Certificate of occupancy and zoning
• Alterations

Considerations before signing a lease

  As a tenant, the type of business will dictate the type of property being rented: a restaurant/café will require a retail store front space; a metal fabrication shop will require industrial space; an investment firm or tech start-up will require office space.  Regardless of the type of space being rented, consider whether the property will meet the needs of the business, the property will support future growth of the business, and that the specific use is allowed under local zoning laws.  For a landlord, make sure the obligations are on the tenant.

Common important terms of a commercial lease

a. The length and cost of a lease:

All commercial leases set forth the length of the lease, how much rent will be paid, what additional rent the tenant is responsible for, and the amount of security to be held by the landlord.  When considering the bottom line (what is the total monthly cost for the commercial space), one should look at the not only the rent being paid, but also if there are additional payments for real estate taxes, maintenance for common areas, water and/or late fees.  In addition, consider if the rent will increase over the term of the lease, and if so, by how much.  The tenant is also required to deposit security with the landlord and a landlord will want to make sure they get as much of a security deposit as possible.

b. The Guaranty:

Most commercial leases contain a personal guaranty and it is one of the most important components of a commercial lease.  A personal guarantee is where an individual agrees to personally guarantee that the lease terms will be fulfilled.  The individual signing the personal guaranty (the “guarantor”) is personally liable to the landlord for rent and other obligations of the tenant in the event the tenant fails to comply with the lease.  There are different types of guaranties.  Signing a personal guaranty could have dire consequences for the guarantor – personal home could be at risk and bank accounts and assets could be frozen.  On the other hand, a guaranty is good for a landlord because it allows the landlord to look beyond the limited liability of a corporation or LLC in the event the tenant defaults.  In either circumstances, a personal guaranty should not be signed without consulting with an attorney.

c. Use and zoning:

The type of use permitted at the property is also important.  Both the landlord and the tenant should ensure that the proposed use of the commercial real estate is allowed under applicable law and regulations.  The building’s certificate of occupancy, along with local zoning regulations will determine what uses are permitted.  Before even signing a lease, it is recommended that the proposed use be discussed with a local attorney to determine whether a specific use is permitted, and if not, how the use may be changed.  The lease should also address who will be responsible for making such changes.

d. Alterations:

Typically, the commercial space may need complete renovation or a build out to suit the tenant’s needs.  Prior to signing the lease, the landlord and the tenant should agree to the work that is to be completed so all parties are on the same page as to what work is to be completed and you decrease the chance for a dispute to arise.  Both the landlord and the tenant should also agree to the amount of time needed to hire an architect, plan the build out, obtain permits, complete the build out, and get final approvals from the building department.

We are here to help

Whether you are a landlord or a tenant, commercial leases include liabilities, risks and obligations.  The terms discussed above are just a few of many terms that appear in a commercial lease.  A commercial lease is a voluminous and complex legal contract that should be drafted and/or reviewed by an attorney.  It is important that you invest the time and resources up front to ensure that you are adequately protected.  Therefore, it is critical that you have legal representation.   We will work with you to understand your needs and goals, and so that you fully understand your rights, responsibilities and obligations under the commercial lease.  We will negotiate the terms and will work with the other side in finalizing the lease to ensure you obtain the most fair and favorable terms, and the commercial lease is clear so as to prevent disputes.

Practicing real estate, both commercial and residential, for over 20 years, James G. Dibbini & Associates, P.C. has the experience, knowledge, and know-how to navigate you through the complicated and overwhelming process of negotiating and executing a commercial real estate lease.  If you need representation for a commercial lease, or you have any questions regarding a commercial lease, let us help you.  Give us a call at (914) 965-1011 or email us at jdibbini@dibbinilaw.com to schedule a consultation.

This James G. Dibbini & Associates, P.C. Newsletter is a publication of James G. Dibbini & Associates, P.C. All Rights Reserved. Quotation with attribution is permitted. This newsletter offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that James G. Dibbini & Associates, P.C. does not undertake to update its publications after their publication date to reflect subsequent developments. Prior results do not guarantee a similar out- come. This publication may contain attorney advertising.