Buying a home (whether it be a house, cooperative apartment or condominium unit) should be exciting, but it can also be stressful and overwhelming, especially if you are not prepared and do not know what to expect. Although every transaction is unique, this newsletter is meant to give a general overview of the process of buying a residential property.
The first step should be to honestly assess your financial status and determine a budget that considers the purchase price as well as your closing costs and needed improvements. There are many websites available online that will help you calculate your budget and monthly mortgage payments available to assist you with this step. Early on in the process you should find a realtor who specializes in the area where you want to live. The realtor can show you various houses, condominium units and cooperative apartments and can explain the costs and benefits to each type of ownership. You should see what is available and try to understand the market before purchasing. When purchasing a coop or condo, pay particular attention to the financial statements related to the property as the documents may reflect the financial health of the coop entity or condo association.
Once you find the property you want to buy, your realtor will help you make an offer to the Seller. Your offer will include the price you want to pay, and you may ask the Seller to include certain personal property in the sale and/or to make certain repairs or modifications to the property. Depending on the circumstances, you can make your offer contingent on obtaining financing and/or a satisfactory engineer’s inspection of the home. The Seller may accept or reject your offer, or may counteroffer for a different price or terms.
If you and the Seller can agree on terms, the realtor will draft a “memorandum of purchase and sale” (also known as a “term sheet”) that summarizes the agreed-upon terms. The realtor will send the term sheet to the attorneys for yourself and the Seller. Within several days from receiving the terms, the Seller’s attorney will prepare a contract of sale and deliver it to your attorney for review. The contract should contain the agreed-upon terms and will outline the responsibilities and representations of both you and Seller. Shortly thereafter, the attorneys will discuss the contract terms with their clients and each attorney will negotiate the specifics in order to best protect their clients’ rights.
At this time, a Purchaser who is seeking financing for the transaction should consult a mortgage broker and begin the loan application process. Many closings are delayed due to issues with the Purchaser’s financing, so this is something you want to start early and closely track throughout the process.
Before signing the contract, you should conduct your due diligence with respect to the property. Due diligence includes reviewing the building department file for a valid certificate of occupancy, violations and/or open permits affecting the property, confirming the real estate taxes and utility costs. You should also consider conducting an engineer inspection which will check the electrical, mechanical, HVAC, plumbing and other systems, the roof and foundation, and for termites, radon and the existence of an underground oil tank.
After the attorneys finalize the contracts, the Purchaser will review and sign the contracts first and make the initial down-payment (usually around 10% of the contract purchase price). The Seller generally signs within a few days after the Purchaser. Once all parties have signed and contracts delivered, the parties are legally bound to the terms of the transaction. At this time, the attorney for the Purchaser will order a title search to see what, if anything, appears of record that would affect title to the property. If a survey of the premises cannot be located, the attorney for the Purchaser may also order a survey to make sure there are no encroachments onto the property. Almost all contracts require a Seller to deliver clear title, so if any title issues are uncovered by the title search or survey, the Seller will be required to correct the title issues or refund the down-payment funds the Purchaser has paid. Purchasers are cautioned when buying properties owned by a bank (REO) or from a Seller in a short sale (which is when a Seller’s mortgage is greater than the sales price), these contracts often provide that the Seller is selling the property strictly “as is” and as such the Purchaser may be taking title subject to open title or other issues.
During the time the parties are waiting for the title search to be completed, you should be in constant contact with your mortgage broker or bank loan officer to make sure the loan application is moving forward and to ensure that a mortgage commitment can be issued in the time frame allowed in the contracts. Generally, Purchasers have 30-45 days from signing contracts to obtain a commitment from their lender. Most loan commitments are issued with conditions that must be satisfied by Purchasers prior to the lender giving final funding approval. It is important that you and your attorney understand and address all conditions promptly.
Once your loan is cleared to close and the title to the property is clear, the parties will schedule a closing date and time that works for all the parties. Most residential transactions close within 60-90 days from contract signing, but timing depends on the facts and circumstances of the parties and each deal is unique. Once a closing is scheduled, the attorneys prepare closing statements to detail the closing expenses of their clients. Closing costs for a Purchaser include title charges, bank fees, attorneys’ fees and varying other expenses depending on your situation. You should anticipate what may be thousands of dollars paid by the Purchaser and/or withheld from the bank proceeds to pay real estate taxes that will be due within 60 days from the closing and to fund the bank’s escrow account to pay future real estate taxes on behalf of the Purchaser.
Prior to the actual closing you should contact your real estate agent to schedule a final walkthrough of the property. Be sure to inform your attorney if there are any new issues or problems with the property that come up during your walkthrough. If there are multiple purchasers, your attorney will also ask you how you will want to take title to the property in the deed to be signed by the Seller. At the actual closing itself your attorney will explain any documents required by your lender and confirm that you understand the terms of the loan you are entering into. You attorney will also review the various transfer tax forms, deed, title charges and any other affidavits or forms required at the closing. Once all documents have been executed, checks related to the seller’s proceeds and various closing costs exchanged and the keys to the property have been turned over by the Seller you will officially be the new owner of the property. The original deed will be recorded with the county clerk’s office and should be returned to you within a few weeks time, but you should obtain a copy while at the closing table for proof of ownership until then. Following your closing, your attorney will prepare a closing package for you, complete with copies of all of the closing documents relevant to your purchase.
For more detailed information related to real property transactions including specific articles related to a Purchaser’s due diligence and closing costs, please see our earlier Newsletters on our website at www.dibbinilaw.com/newsletters.php.
James G. Dibbini & Associates, P.C. has successfully performed thousands of residential real estate closings and we are familiar with a wide array of closing issues. We guaranty to provide you professional and prompt service on all of your real estate needs, and as your attorneys, our firm will make sure that you understand the process and costs involved throughout your transaction.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
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 outcome. This publication may contain attorney advertising.
Unlawful Evictions
UncategorizedWhile everyone would love for the relationship between a landlord and a tenant to be amicable, the unfortunate reality is that sometimes landlords must seek to evict tenants in order to maintain a safe, healthy and profitable property. Many landlords who are fed up with a tenant but are unaware of the proper legal process run the risk of committing an unlawful eviction, which can expose the landlord to significant liability and possible criminal charges.
An unlawful eviction is any form of eviction that is not performed in accordance with the established legal process. When people think of an unlawful eviction, the most obvious scenario that comes to mind involves the use or threat of physical force with the purpose of making the tenant leave. This can open the landlord up to criminal charges as well as civil liabilities, and like the rest of the examples below, is an inappropriate way to try to resolve a conflict with a tenant.
A lesser known type of unlawful eviction is when the landlord engages in a course of conduct which attempts to interfere with or disturb the comfort of the tenant in their use of the unit in order to encourage the tenant to leave. Examples of this include cutting off essential services like hot water or electricity in the hope of making the tenant’s stay in the unit unbearable. These types of evictions are known as “constructive evictions” since the tenant is not physically removed, but the tenant’s right to the undisturbed use and enjoyment of the premises has been violated. If the landlord withholds an essential service that they have a legal duty to provide, and thereby make the property uninhabitable, the tenant may terminate the lease and be entitled to seek damages.
An unlawful eviction can also exist when a landlord takes steps or threatens to take steps which would prevent the tenant from occupying the unit or attempting to force them to vacate, such as changing the locks on the tenant’s unit without providing them with a new key. However, this can also include tampering with the locks, removing the tenant’s door or removing their possessions from the unit.
If an unlawful eviction does occur, then the tenant may call the police and bring criminal charges against the landlord. It is also possible that the tenant can seek an order from the Court directing the landlord to allow the tenant to return to the premises. In some cases, the landlord may be liable for up to three times any damages suffered by the tenant.
The only way a landlord may lawfully evict a tenant is by going to court and obtaining a judgment and warrant of eviction to be executed by a local marshal’s office or another authorized enforcement officer. James G. Dibbini & Associates, P.C. is well versed in the area of landlord and tenant law. If you have any questions about what you need to do as a landlord to secure the legal eviction of a tenant, or if you think you may have been the victim of an unlawful eviction, please contact our office to discuss your situation and schedule a meeting.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
We practice in all local courts throughout Westchester County (including Yonkers, Mt. Vernon, White Plains, New Rochelle) Bronx County and the Metro area. For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
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 outcome. This publication may contain attorney advertising.
Residential Real Estate Transactions: What a Purchaser Can Expect
UncategorizedBuying a home (whether it be a house, cooperative apartment or condominium unit) should be exciting, but it can also be stressful and overwhelming, especially if you are not prepared and do not know what to expect. Although every transaction is unique, this newsletter is meant to give a general overview of the process of buying a residential property.
The first step should be to honestly assess your financial status and determine a budget that considers the purchase price as well as your closing costs and needed improvements. There are many websites available online that will help you calculate your budget and monthly mortgage payments available to assist you with this step. Early on in the process you should find a realtor who specializes in the area where you want to live. The realtor can show you various houses, condominium units and cooperative apartments and can explain the costs and benefits to each type of ownership. You should see what is available and try to understand the market before purchasing. When purchasing a coop or condo, pay particular attention to the financial statements related to the property as the documents may reflect the financial health of the coop entity or condo association.
Once you find the property you want to buy, your realtor will help you make an offer to the Seller. Your offer will include the price you want to pay, and you may ask the Seller to include certain personal property in the sale and/or to make certain repairs or modifications to the property. Depending on the circumstances, you can make your offer contingent on obtaining financing and/or a satisfactory engineer’s inspection of the home. The Seller may accept or reject your offer, or may counteroffer for a different price or terms.
If you and the Seller can agree on terms, the realtor will draft a “memorandum of purchase and sale” (also known as a “term sheet”) that summarizes the agreed-upon terms. The realtor will send the term sheet to the attorneys for yourself and the Seller. Within several days from receiving the terms, the Seller’s attorney will prepare a contract of sale and deliver it to your attorney for review. The contract should contain the agreed-upon terms and will outline the responsibilities and representations of both you and Seller. Shortly thereafter, the attorneys will discuss the contract terms with their clients and each attorney will negotiate the specifics in order to best protect their clients’ rights.
At this time, a Purchaser who is seeking financing for the transaction should consult a mortgage broker and begin the loan application process. Many closings are delayed due to issues with the Purchaser’s financing, so this is something you want to start early and closely track throughout the process.
Before signing the contract, you should conduct your due diligence with respect to the property. Due diligence includes reviewing the building department file for a valid certificate of occupancy, violations and/or open permits affecting the property, confirming the real estate taxes and utility costs. You should also consider conducting an engineer inspection which will check the electrical, mechanical, HVAC, plumbing and other systems, the roof and foundation, and for termites, radon and the existence of an underground oil tank.
After the attorneys finalize the contracts, the Purchaser will review and sign the contracts first and make the initial down-payment (usually around 10% of the contract purchase price). The Seller generally signs within a few days after the Purchaser. Once all parties have signed and contracts delivered, the parties are legally bound to the terms of the transaction. At this time, the attorney for the Purchaser will order a title search to see what, if anything, appears of record that would affect title to the property. If a survey of the premises cannot be located, the attorney for the Purchaser may also order a survey to make sure there are no encroachments onto the property. Almost all contracts require a Seller to deliver clear title, so if any title issues are uncovered by the title search or survey, the Seller will be required to correct the title issues or refund the down-payment funds the Purchaser has paid. Purchasers are cautioned when buying properties owned by a bank (REO) or from a Seller in a short sale (which is when a Seller’s mortgage is greater than the sales price), these contracts often provide that the Seller is selling the property strictly “as is” and as such the Purchaser may be taking title subject to open title or other issues.
During the time the parties are waiting for the title search to be completed, you should be in constant contact with your mortgage broker or bank loan officer to make sure the loan application is moving forward and to ensure that a mortgage commitment can be issued in the time frame allowed in the contracts. Generally, Purchasers have 30-45 days from signing contracts to obtain a commitment from their lender. Most loan commitments are issued with conditions that must be satisfied by Purchasers prior to the lender giving final funding approval. It is important that you and your attorney understand and address all conditions promptly.
Once your loan is cleared to close and the title to the property is clear, the parties will schedule a closing date and time that works for all the parties. Most residential transactions close within 60-90 days from contract signing, but timing depends on the facts and circumstances of the parties and each deal is unique. Once a closing is scheduled, the attorneys prepare closing statements to detail the closing expenses of their clients. Closing costs for a Purchaser include title charges, bank fees, attorneys’ fees and varying other expenses depending on your situation. You should anticipate what may be thousands of dollars paid by the Purchaser and/or withheld from the bank proceeds to pay real estate taxes that will be due within 60 days from the closing and to fund the bank’s escrow account to pay future real estate taxes on behalf of the Purchaser.
Prior to the actual closing you should contact your real estate agent to schedule a final walkthrough of the property. Be sure to inform your attorney if there are any new issues or problems with the property that come up during your walkthrough. If there are multiple purchasers, your attorney will also ask you how you will want to take title to the property in the deed to be signed by the Seller. At the actual closing itself your attorney will explain any documents required by your lender and confirm that you understand the terms of the loan you are entering into. You attorney will also review the various transfer tax forms, deed, title charges and any other affidavits or forms required at the closing. Once all documents have been executed, checks related to the seller’s proceeds and various closing costs exchanged and the keys to the property have been turned over by the Seller you will officially be the new owner of the property. The original deed will be recorded with the county clerk’s office and should be returned to you within a few weeks time, but you should obtain a copy while at the closing table for proof of ownership until then. Following your closing, your attorney will prepare a closing package for you, complete with copies of all of the closing documents relevant to your purchase.
For more detailed information related to real property transactions including specific articles related to a Purchaser’s due diligence and closing costs, please see our earlier Newsletters on our website at www.dibbinilaw.com/newsletters.php.
James G. Dibbini & Associates, P.C. has successfully performed thousands of residential real estate closings and we are familiar with a wide array of closing issues. We guaranty to provide you professional and prompt service on all of your real estate needs, and as your attorneys, our firm will make sure that you understand the process and costs involved throughout your transaction.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
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 outcome. This publication may contain attorney advertising.
The Rising Tide of Unpaid Cooperative Corporation Maintenance Arrears Challenges, Processes, and Solutions
UncategorizedThe Problem
The cooperative corporation (co-op) community was not spared from the challenges and fallout of the housing bubble and financial crisis. As was the case with homes, some lenders provided more house—or in this case more co-op—than borrowers could afford. At alarming rates, co-op boards are finding themselves with shareholders who are unable to maintain monthly payments, resulting in rapidly increasing maintenance arrears.
When seeking to resolve unpaid arrears, co-op boards are faced with a litany of options from whether to obtain money judgments and collect by levying bank accounts and garnishing wages, to seeking to evict the shareholder and cancel their shares, to renting out vacant units or selling them at auction or private sale. Each of these potential paths involves risk and requires significant interaction with banks, shareholders, management companies, court officials, auctioneers, not to mention attorneys representing each of the interests. Co-op boards find themselves engulfed in legal jargon and terms such as recognition agreement, proprietary lease, uniform commercial code, and appreciating the difference between real and personal property.
Options and Process
Co-ops facing problems with unpaid arrears often seek to “cancel” shares owned by delinquent shareholders and sell the units/shares at either a private sale or at a public auction. Much of this share cancellation and auction process is governed by Article 9 of the Uniform Commercial Code, which provides for a lengthy, onerous, and very strict procedure for accomplishing what is essentially a type of foreclosure.
Before moving forward with an Article 9 sale, an in depth assessment of the situation and discussion of options must take place wherein the co-op must decide when to evict the shareholder if they are still in the apartment; whether to rent or sell once the delinquent shareholder is gone; and whether it would be in the best interest of the co-op to repurchase the shares and apartment, or to rent or sell. Thereafter, notices must be sent to shareholders, banks, and lien holders, giving the interested parties notice of the proceedings, and sometimes to the general public informing interested parties and the public what the co-op is doing and how interested parties can and should respond. These procedures must strictly comply with applicable law.
Recouping Monies and Maybe Turning a Profit
The cancelation and reissuance of co-op shares typically is accomplished with a private sale or public auction of the co-op apartment. Thereafter, co-ops often recoup significant sums of money from maintenance arrears, legal and administrative fees, and, sometimes even turn a profit.
Many, if not most, co-op shareholders with significant maintenance arrears initially purchased their co-op apartment with borrowed money. As such, banks and lenders often have a stake and play an integral role in facilitating resolution of unpaid maintenance arrears. The document that set the rules of the relationship between the co-op and bank is called the “recognition agreement.” The laws and dynamics of co-op and lender interaction is a topic for another article; suffice it to say, for self-interested reasons—mitigating losses—banks will often pay off all of a shareholder’s arrears. Establishing communication with the bank and expediting the process is often the focus of a good co-op counsel.
Next
The process of getting to profit—or to break even—requires the co-op board to make tough decisions, demonstrate resolve, and have a knowledgeable and practiced team in place to assist with and navigate what can be a challenging, long, and complex process. James G. Dibbini & Associates, P.C. is here to provide practical advice, a candid assessment of your options, and recommendations on how to proceed.
If your cooperative corporation, or the co-op you manage, is experiencing a maintenance arrears problem, or, if you are a shareholder facing eviction, contact James G. Dibbini & Associates, P.C. for a free consultation. We can provide an easy to understand assessment of your situation with concrete recommendations on how to move forward based on years of proven success in all things property related.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
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 outcome. This publication may contain attorney advertising.
Are You Eligible for a Loan Modification?
UncategorizedEver since the housing crisis began many homeowners across the country have lost their homes to foreclosures. In fact, since 2007, nearly four million homes have been lost to foreclosures. However, recent data shows that the market has been steadily improving. In 2012, there were 7,209 foreclosure sales in New York, which accounted for 5.55% of all home sales in the state. The number of foreclosure home sales in New York has decreased 18.63% from 2011 and 42% from 2010.
This decrease in the foreclosure sales in New York is a promising sign for many homeowners who have fallen behind on their mortgage and are facing the possibility of foreclosure. This decrease may be attributed to the Home Affordable Modification Program, also known as HAMP. Under the HAMP program, the federal government has offered billions of dollars in subsidies to lenders who are helping borrowers in modifying their mortgages. Over one hundred mortgage companies have agreed to participate in the HAMP program and all other mortgage companies with loans owned by Fannie Mae and Freddie Mac are required to participate. The HAMP program has helped many homeowners since 2009 who were behind on their mortgage or homeowners who are current on their mortgage but owe more than what their homes are worth obtain a loan modification from their lenders. In order to be considered for the HAMP program, a homeowner must meet the following criteria: the homeowner obtained their mortgage on or before January 1, 2009; the homeowner owes up to $729,750 on their primary residence or single unit rental property; up to $934,200 on a 2-unit rental property; up to $1,129,250 on a 3-unit rental property or $1,403,400 on a 4-unit rental property; the property has not been condemned; the homeowner has a financial hardship and is behind on their mortgage or in danger of falling behind on their mortgage payments; the homeowner must have sufficient, documented income to support a modified payment; the homeowner must not have been convicted within 10 years of a felony in connection with a mortgage or real estate transaction; the current monthly mortgage payments are costing the homeowner over 31% of their gross monthly income.
Lenders who participate in the HAMP program are required to work with borrowers who meet the above criteria set forth by the HAMP program.
Obtaining a loan modification from your lender can be time consuming, stressful, difficult, and intimidating, especially for borrowers who are behind on their mortgages. Lenders require a myriad of supporting documents from the borrowers in order to process and consider the borrower for a loan modification. Other problems such as not getting a return call from the lender during the loan modification process and not understanding the loan modification are some of the problems that borrowers may face.
If you are a homeowner and are worried about losing your home to foreclosure, please contact James G. Dibbini & Associates, P.C. today. Our office can assist you in the loan modification process and foreclosure defense. A loan modification can save your home, lower your monthly mortgage payments, lower your interest rates, extend the life of the loan, put the arrears on the back of the mortgage loan, and change your variable interest rate loan to a fixed interest rate loan. We are prepared and eager to assist you with your loan modification and foreclosure defense in order for you to keep your home, so please contact us today.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
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 outcome. This publication may contain attorney advertising.
Do You Need a Zoning Variance?
UncategorizedNew York State’s Constitution grants the state legislature the broad authority to regulate land use if it is in the public interest. Although the state retains some authority, much of the power to plan communities and provide for and enforce zoning regulations has been delegated to local municipalities. This means that the reason your house is a certain height and a certain distance from the road, or the reason that it is a house at all and not a retail store, or warehouse has to do with your city or town’s zoning code.
Let’s start with the basic premise that every city, town and village is divided into districts. Cities, towns and villages have zoning ordinances (laws) in place which dictate what type of uses are permitted for properties in each district. The zoning ordinances also dictate how large buildings can be in each district, how far from the road and neighboring property lines the buildings or other structures must be setback, what percentage of the lots may be covered with buildings, the use of the properties and much more.
Are you seeking to develop a piece of property in Yonkers, Mt. Vernon, Eastchester, Tuckahoe, Scarsdale, White Plains, New Rochelle or other areas in Westchester County and the local zoning code does not permit the use or size of your planned structure? Do your plans to expand your house, business or other structure violate setback requirements necessitating one or more area variances or use variances? Would you like to convert a retail store or other space that has not been leased for some time to a better use such as an apartment or vise-versa? Have you been served with a notice from the local municipality advising that your property is in violation of the local zoning code (i.e. improper use or illegal basement apartment)? In many cases, our office can help you to get a variance, which is essentially an exception from the strict application of the zoning ordinances which affect your property. We have extensive experience in real estate matters, filing applications for variances, arguing cases before the zoning board of appeals and prevailing on obtaining the relief our clients seek.
Additionally, is your neighbor seeking a variance from the local zoning board that will negatively affect your property (i.e. changing the use of the property resulting in more traffic or noise to the neighborhood or other harm to the local environment)? Our office can also help protect your rights as a property owner to prevent a reduction in the value of your property resulting from a zoning board’s approval of a neighbor’s variance.
If you think you may have a zoning issue, please contact the Law Offices of James G. Dibbini today for a free consultation. Once we know the specific facts and circumstances of your case, we can help you to identify your zoning issue(s), prepare a plan of action, and get you results.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
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 outcome. This publication may contain attorney advertising.
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So How Does a Residential Non-Payment (Eviction) Proceeding Work Anyway?
NewsOur clients often ask us how the landlord-tenant litigation process (or eviction proceeding) works and how long a landlord must wait before he/she is able to evict a residential tenant. We want to take this opportunity to explain the process.
Ideally, our office will begin a non-payment proceeding when a landlord advises us that a tenant is a month or two behind in rent. Waiting any longer makes it difficult for the tenant to catch up. We will then draft and serve the tenant a three-day rent demand (a prerequisite to initiating suit that gives the tenant notice of late rent and three days to pay before commencing legal action), and then commence the proceeding by drafting, filing with the court and serving the tenant a notice of petition and a petition. Said notice of petition puts the tenant on notice of the action and the need to appear in court.
On the court date, the tenant may not appear, in which case we usually obtain a judgment by default. More often than not, however, the tenant does appear in court. When the tenant appears, he/she may admit what is owed and just request that the judge allow the tenant more time to pay. Other times, the tenant raises defenses to not paying such as needing repairs in the apartment.
Depending on the judge, the court and the circumstances of the case, the judge may adjourn the case so that the landlord may inspect the apartment and complete any alleged needed repairs. (In order to avoid court adjournments, we always recommend to our clients that there be no repairs outstanding at the commencement of a nonpayment proceeding.) In most cases we are able to promptly obtain a judgment for the rent owed (plus the court limited legal fees and court costs) and a warrant of eviction. A stay of eviction is legally required by the court which is essentially a grace period which provides the tenant time to pay what is owed before the warrant can be executed. The typical stay is anywhere from five to fourteen days, again depending on the judge, court and facts of the case. Note with commercial proceedings, there is no minimum stay requirement.
Immediately following the court date, our office prepares and submits a judgment and warrant to the court for the judge’s signature along with a hearing status to the landlord to make sure they are up-to-date on the case. After the Judge signs the judgment and warrant (which could take two to five weeks depending on the court and the time of year) only then can the marshal serve the tenant with a “72-hour notice” if the tenant has not satisfied the judgment. The 72-hour notice is a final warning to the tenants that they have three days to vacate or face eviction by the marshal. As you may know, legally a tenant cannot be evicted based on unpaid legal fees and court costs if the judgment is otherwise satisfied by the end of the stay.
When a tenant does not pay what is owed in the time allotted or vacate by the stay date, he/she sometimes elects to file an “order to show cause,” which is a request to stop the eviction and have the matter reconsidered by the judge. Technically the tenant’s order to show cause should be based on a meritorious defense (a legal reason for not paying the rent). However, many judges sign the orders for almost any reason to provide the tenant extra time either to get the money to pay the landlord or to vacate. If the tenant files an order to show cause, we are required to go back into court to answer it. We usually request that the order be denied with no further stay to the tenant – this allows for the immediate eviction of the tenant. However, many judges today (even without any proof the tenant can pay the outstanding judgment) will allow the tenant another week or two before the marshal is allowed to finally evict the tenant.
As you may know, some tenants file multiple orders to show cause to continue to buy extra time and, oftentimes, judges will sign them even when there is no meritorious defense. In these cases, our office strives to obtain the shortest stays possible, so that matters can be resolved quickly.
If you have any further questions about the non-payment process, or other matters such as holdover proceedings, leases, DHCR Registrations please do not hesitate to contact our office.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
We practice in all local courts throughout Westchester County (including Yonkers, Mt. Vernon, White Plains, New Rochelle) Bronx County and the Metro area. For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
This James G. Dibbini & Associates, P.C. blog 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 outcome. This publication may contain attorney advertising.
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News, UncategorizedJames G. Dibbini & Associates, P.C. provides full-service consultation and representation for landlords of residential and commercial properties throughout throughout the Bronx, Manhattan, Queens, Brooklyn and Staten Island.
Tips for Landlords
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