Recent Blog Posts

What Can I expect from a Real Estate Short Sale?

Cynthia Burke — Thu, 08 Mar 2012 23:20:00 GMT

A short sale is a device used by lenders and borrowers to avoid a foreclosure action. The mortgage is in default for a while, and the bank realizes that the borrower cannot pay. The borrower finds a purchaser, but either the market value has gone down, or for whatever reason, the borrower finds a new buyer who wishes to pay less than the mortgage due.

The bank will require documentation, including an income and expense statement from the borrower, a hardship letter, the contract of sale, and a proposed HUD-1 Settlement Statement showing all expenses of sale. Each bank has their own requirements, and it usually takes approximately four to six weeks to review the package when received. You may feel that you are in limbo, but eventually you should have a person assigned to the case who will negotiate with you. There should be one person, either a lawyer or real estate broker, designated to deal with the bank on behalf of the seller. Persistence in contacting the bank is a must to ultimately obtain permission. It is not unusual for the bank to request the same documents on numerous occasions, stating that they never initially received them.

If the amount offered is approved, the closing can take place, and the borrower provides a letter from the bank to the title company showing approval of the short sale. The borrower should also make sure that he is released from personal liability on the note for the shortfall after the short sale is approved.

If the Short Sale is qualified under the Home Affordable Foreclosure Alternatives Program (HAFA ), the seller will receive $3,000 at closing towards moving costs.

One consideration in a short sale is whether there will be income tax due on the forgiven amount, and a tax advisor must be consulted before the short sale to resolve this issue. The Mortgage Forgiveness Debt Relief Act of 2007, has provided some exemptions to this tax, but a tax advisor must be consulted to determine if your particular loan qualifies for any of these exemptions. Don't assume that if the home is your principal residence, that you automatically qualify. For example, if some of the debt is a refinance where the money was used to purchase items such as cars or other non-house improvement related items, the forgiven debt would be taxable.

Another option to avoid a foreclosure is called a Deed in Lieu of Foreclosure, where a deed is given directly to the lender. The lender will most likely require that your home have been on the MLS for at least three months before they will consider this option. You need to make sure that you will not be held liable for the shortfall after the bank sells the property. As always, check with a tax advisor as to any tax ramifications.

Cynthia M. Burke practices Real Estate, Divorce, Litigation and Bankruptcy Law in the Counties of Nassau, Suffolk, Westchester, and all Boroughs of New York City.

Deed with Life Estate in NY (Estate Planning Tool)

Cynthia Burke — Fri, 03 Feb 2012 23:40:00 GMT

A deed with a life estate is an estate planning tool with many advantages. The first advantage is a very significant tax advantage. If an elderly person wishes to have certain persons receive their real property upon their death, instead of leaving it in a will, they can transfer the Deed to the beneficiaries, retaining a life estate for themselves. Upon their death, the property automatically goes to the beneficiaries, without having to probate a Will. By reserving a life estate, the grantor need not worry about having to leave the home, since they have the right to stay there for the rest of their lives. Upon their death, the property is transferred with a stepped-up basis. This means that if the property increased in value (which can be significant), the heirs receive the property with a market value basis, and if the house were sold within six months of the date of death, no capital gains tax would be due. Any increase in value from the date of death would be considered capital gains from that point onward. An accountant should be consulted with any tax ramification questions, whether it be regarding capital gains tax or estate or gift tax questions. For example, the laws regarding a step up in basis are different for the year 2010, and an executor has certain options, the decision for which will depend on the value of the estate.

The laws regarding life estates with respect to Medicaid changed last year. It appears that there will be a look back period for qualification even when a life estate is retained, although it is calculated differently than when a life estate is not retained. There will also be a Medicaid lien for the value of the life estate. This is a very specialized area of law, and an attorney should be consulted before taking any action toward qualifying for Medicaid, or transferring any property to become qualified for Medicaid.

It may be a disadvantage to transfer the property to a life estate if it's expected that the property will be sold prior to the death of the parent. This is because the capital gains exclusion upon sale may be lost, unless the new owner qualifies for that exemption.

If the property is transferred outright, without a reserved life estate in the deed, the IRS may still consider that it is a retained life estate if the parent remained in the premises, without paying rent, and other crieteria. Hence, the property would be includible in the estate, and the stepped-up basis allowed.

In addition, subject to verification with your property assessor’s office, it looks like a senior citizen will be able to retain their senior enhanced Star property tax exemption even after transferring the property and retaining a life estate, so long as they reside in the property.

Cynthia M. Burke, http://www.nyrealtylaw.com

No Fault Divorce in New York

Cynthia Burke — Wed, 01 Feb 2012 02:48:00 GMT

As of October 2010, New York joined the ranks of most sister states, by enacting a law permitting a no fault grounds for divorce. The wording of the no fault divorce grounds is as follows: "the irretrievable breakdown of the marriage for a period of at least six months."

As a tradeoff, and to protect the less monied spouse, in order to utilize this grounds for divorce, all issues of the divorce, including child support, maintenance (a/k/a alimony), equitable distribution of assets, and legal fees, must be resolved between the parties in a written stipulation, or court order, before a divorce will be granted on these grounds. It appears that a divorce will still be given on fault grounds, without having to resolve all issues (other than child support and custody, which was previously the law).

Once all issues are resolved in writing or by court order, either party can swear out an affidavit stating that the marriage has been irretrievably broken for six months, and the divorce will be granted.

Although at first blush it may seem easier to obtain a divorce on the new no-fault grounds, it is, in effect, actually more difficult, because of the requirement for the written stipulation or trial.

Hot Coffee

Cynthia Burke — Tue, 31 Jan 2012 01:57:00 GMT

I am sure everyone has an opinion about the "hot coffee" case brought against McDonald's. The case became the poster child for tort reform. I always thought that the result was reasonable under the circumstances, but mostly heard jokes about the case. It wasn't until I saw the documentary, "Hot Coffee" on HBO that I realized just how reasonable the result was.

The plaintiff was an elderly woman, who was a passenger in a stopped vehicle, when she spilled the coffee on her lap. She was trying to open the lid to put in condiments, when the whole thing spilled onto her groin. The coffee was well beyond a boiling point in temperature, and the pictures of her third degree (highest level) burns on her skin, and the delicate area where it occurred, is not easy to look at. This woman was severely injured.

She was only initially seeking to recoup medical costs, which McDonald's refused. She then had no choice but to bring a lawsuit, and it was the jury who granted punitive damages. Based upon the facts of the case, they had ample justification for awarding the punitive damages, to punish McDonald's for their actions, which went far beyond negligence. They knew the coffee was too hot, and did nothing to remedy the situation. Numerous persons were previously burned, and they were on notice of the defect.

Nevertheless, the Judge reduced the damages. By that time, the myth of a woman getting millions for a spill of coffee was in the mainstream, and the butt of jokes for the legal system. It was also glommed onto by President Bush and his administration as a reason for tort reform.

I ask that anyone who thinks the plaintiff did not deserve damages for her injuries, or that McDonald's should not be held responsible, watch the HBO documentary, Hot Coffee, and form an opinion after seeing all the facts, as well as her gruesome injuries.

It is unfortunate that tort reform is limiting the amount of damages, or making it almost impossible to sue at all, for people who are legitimately harmed by the negligence of others.

Welcome to our Long Island Law Blog

Cynthia M. Burke — Fri, 13 Jan 2012 22:40:00 GMT

We are pleased to announce the launch of our New York Real Estate Law Blog. You can subscribe to our RSS feed by clicking here.

Why being a Pro Se Litigant is Not a Good Idea.

Cynthia Burke — Fri, 23 Sep 2011 22:15:00 GMT

In my legal career, I’ve been consulted by many people who have attempted to represent themselves, and now need a lawyer. I have represented the opponent of litigants representing themselves (pro se). I cannot remember a time when the pro se litigant has been successful in any manner. Although courts are slightly more lenient towards laypeople, they basically expect them to follow the rules of the court, and unless you are in Small Claims Court, that’s almost an impossibility.

For example, you are sued by a plaintiff, and you decide to run into court and file an “Answer” yourself, maybe because you don’t want to pay for a lawyer, or you don’t have time to deal with it. You think you are buying more time. What you have just done is most likely consented to jurisdiction on the case, and have now waived any and all defenses you have to the case. You may have written some of them down, inartfully, but a layperson just doesn’t know the technical legal jargon that is required. Nor do they know the time-frames for motions once the “Answer” is filed. When you realize that you can’t handle the case yourself, you now try to obtain an attorney. That attorney, if she takes the case, now has one hand tied behind her back in handling the case.

A pro se litigant is easy to be “beaten up” by an attorney. It’s easier than taking candy from a baby. The pro se litigant does not know procedure, they cannot take a deposition, don’t know how to conduct discovery, and they cannot properly ask questions at a trial. Most pro se litigants just give up in the middle of the litigation, or have their case dismissed.

If you are being sued, a lawyer could possibly tell you a way to have the case dismissed against you at the outset, or to set a strategy for that to happen at some point in the litigation. There are deadlines for answering a complaint, which is indicated on the Summons. Once that date has passed, you would be in default. It’s possible to have the default vacated, but you would then be at a disadvantage.

In short, when you are served with a Summons, immediately contact a lawyer. If you have a case, contact a lawyer within a reasonable time (so as to not miss a statute of limitations). You will most likely save money in the long run, and will definitely save yourself from many headaches.

Cynthia M. Burke

Death with Dignity Law

Cynthia Burke — Thu, 09 Jun 2011 22:15:00 GMT

Recently watched “How to Die in Oregon” on HBO, a documentary about the Death with Dignity Law enacted in that state. It was also subsequently enacted in Washington State. It’s called physician assisted because a doctor must certify that the person is terminal to die within six months, and the doctor prescribes the medication that causes the death. It is done with the request, knowledge and consent of the terminally ill patient. There is a residency requirement, but there hasn’t been a flock of people trying to establish residency to qualify under the law. The law is nothing like the services of Dr. Kervorkian, who died last week. Dr. Kervorkian didn’t have any residency requirement that I’m aware of; didn’t require the person to be terminally ill; and helped people who were suffering severely die with dignity. When he tried to help someone who would have trouble administering the final drugs to himself, he was convicted of murder and put in prison for many years. I am for physican assisted end of life assistance, and am sure that hospices in most states provide this service through the administering of morphine over a period of time, that alleviates the suffering and eventually facilitates the person’s death. This is the only humane thing to do, and everyone should have the comfort to know that they can die with dignity in the end.

The Law Offices of Cynthia M. Burke prepares estate planning documents, Powers of Attorney, and Health Care Proxies, which are important to have to ensure that one’s wishes are carried out in the future.

Bankruptcy Credit Counselling and Financial Management

Cynthia Burke — Thu, 27 Mar 2008 22:15:00 GMT

Under the new laws enacted in October 2005, a debtor filing for a Chapter 7 or 13 bankruptcy must now obtain two certificates: the first is done pre-petition filing and is called Credit Counselling, the second is done after the petition is filed and is called a Financial Management course. A list of approved providers for each particular bankruptcy district is provided on the bankruptcy website. Each phase can be done on-line, and when completed, a certificate is issued, which is needed to be filed at the appropriate time with the bankruptcy court. If these certificates are not timely filed, the Petition may be dismissed without a discharge.

Long Island Housing Partnership - Home Down Payment Assistance

Cynthia Burke — Sun, 28 Oct 2007 22:15:00 GMT

Long Island Housing Partnership is a government program that provide $15,000 towards down payment and closing costs of a qualifying home in Nassau County, New York. There are income requirements, and the purchaser must put down at least $2,000. You do not have to be a Long Island resident to apply – you just need to purchase a home in Nassau County. Applications are being accepted until December 25, 2007.

An application, with all information and documentation requested, is required to obtain a Purchaser Certificate, and you must enter into a contract of sale within three months and close within six months of obtaining the Certificate. Prior to issuance of the Purchaser Certificate, applicants who are approved for the program and certified as eligible will be required to obtain one-on-one mortgage counseling and receive a pre-qualification of a mortgage from a recognized institution. Private mortgages or no-documentation mortgages are not permitted.

The above is general information, and a complete instruction sheet and application, outlining all steps to be taken, should be obtained from Long Island Housing. They can be reached at (516) 571-0360/(fax) 571-0377. The funds are technically a loan that is forgiven if you remain the home for ten years.

If you are depending on these funds to close, you must notify your real estate attorney, since there are time deadlines that need to be coordinated. For example, from my experience, it will take approximately three weeks for the check to be issued by the County, once Long Island Housing is in receipt of all necessary requirements, including the firm mortgage commitment. Hence, a closing date needs to be put in the contract to accommodate the extra time.

Sometimes the purchaser also applies for a SONYMA mortgage, which could take even more time, since there are numerous steps in obtaining a SONYMA commitment. It seems lucrative because the interest rate is lower, and the purchaser may also receive closing cost assistance, but the purchaser has to pay PMI and the mortgage is forty years. These factors, and the extra time in closing, need to be weighed and accommodated. If you are depending upon a SONYMA loan, it should be specifically stated in the Contract of Sale. Otherwise, you could be in default if the time to close passes, and the contract called for a standard mortgage. A seller could retain the down payment if they deem that you are in default.

Although there seem to be many hoops to jump through to obtain the above funding, it could be what is needed to allow a moderate income family afford their first home in the suburbs of Nassau County.

Cynthia M. Burke, http://www.nyrealtylaw.com

Bankruptcy and Foreclosure

Cynthia Burke — Sun, 21 Oct 2007 22:20:00 GMT

Many people in foreclosure, who have equity in their home, attempt to negotiate with the bank for a forebearance agreement, a short sale, or a refinance with a different lender to bail them out before the home is sold at foreclosure. It’s getting more and more difficult in this climate to accomplish this. In the meantime, the balance owed grows larger by the minute, and the bank attorneys charge full steam ahead towards an auction.

One way to stop the foreclosure train would be to file a Chapter 13 bankruptcy. However, it will only be a temporary fix, unless you qualify for the action. You would need to show that your “disposable income” (based upon an analysis of your income versus expenses) allows you to pay the arrears of your mortgage over a five year period, while you continue to pay the current amount due, plus your other necessary expenses. When the arrears are large, and you haven’t been able to keep up with payments and property taxes, or possibly other credit card debt, this may be an impossibility. The case would then be dismissed, and the foreclosure stay is lifted.

A Chapter 7, where there is no property to save, is not as difficult to qualify for as one may think. Most of my clients who have above average salaries and children qualify for a full Chapter 7, without having to pay back any debt. Of course, your credit rating will be affected for approximately seven years, but many people are abile to rebuild their credit rather quickly after a bankruptcy.

There are additional requirements since the law changed in October 2005. My clients find the credit counselling to be quick, easy and inexpensive. You simply go on line, or speak with a credit counsellor on the phone for approximately fifteen minutes, and receive a certificate. This must be done within six months of the petition filing. If you were required to file tax returns, they must be available for the past three years, and the current year of filing the petition. I would also recommend keeping copies of your credit card and loan statements, as well as bank statements. They will make the filing easier, and may be required by the trustee. You will also need current pay-stubs, or an affidavit from your employer regarding your year-to-date salary. Any luxury items charged on a credit card within two months of filing are not dischargeable. I would recommend ceasing all credit card activity for that two month period.

The only appearance necessary is called a 341 meeting before a Trustee. The trustee questions you regarding the veracity of the petition. Since the new law, it is possible that your petition will be the subject of an audit, to discourage people from making misstatements on the Petition.

Cynthia M. Burke, http://www.nyrealtylaw.com

Prosecutor for a Day

Cynthia Burke — Thu, 04 Oct 2007 22:20:00 GMT

I’m fast approaching my ten year anniversary of being admitted to practice in New York. This brings to mind one of my first adventures in being a lawyer at the first law firm I worked for as an associate. I had a lot of practical experience before being admitted, and the partner, out of necessity, had no problem in my handling any type of matter, from depositions, closings, and even trials, from the get go.

So maybe a few months after I was formally admitted, I was sent to Family Court to handle an emergency Order of Protection case. I was told that the husband had been arrested on a violation of a temporary order of protection, and that the case was going to be tried on an immediate basis. I arrived in court promptly at 9:00 a.m. to meet the client. By the time the husband was brought to court from jail, itÂ was approximately 4:00 p.m. We went before the Judge, andÂ having no experience in criminal matters, I asked that the defendant be held without bail. I immediately amended this to seeking that bail be set, when the Judge replied - ”I thought this was America.” The defendant didn’t have any money, so he was remanded back to jail, so that an attorney could be assigned. We were ordered to come back the next day.

I was told I had to be there at 10:00 a.m., and again had to wait most of the day for the defendant to be brought back from jail. After talking to my client for two days, I had enough ammunition to effectively cross-examine the defendant on the assault of my client and other issues. My client had a deformity of her leg, and walked with a cane. The defendant tried to testify that my client lunged at him from across the room, and he stepped out of the way, when she fell. He was caught in numerous other lies, and although the transcript probably shows my inexperience, I felt like Perry Mason, Jr. At one point the Judge admonished meÂ that I knew better than to abuse the witness.

This was definitely a made for television experience, because during the direct of the defendant by his court appointed attorney, my client went ballistic, stood up, and started yelling at the defendant in a fugue state – saying “You are a f**ing liar” over and over. I then heard the Judge say “counsellor, control your client,” which was impossible in her state. He then cleared the courtroom to allow my client time to calm down.

The defendant’s attorney tried to use my client’s temper tantrum against her, but I think the judge saw how upset she was, and through cross-examination, that the defendant actually was a liar. The defendant was found guilty of committing an assault violation. I was disappointed that he wasn’t found to have committed a misdemeanor.

On the day of sentencing, I was involved with a motion in Surrogate’s Court (another story), and couldn’t be in Family Court. The partner went instead, and my client received her Order of Protection. I’ve never had the opportunity to act as a prosecutor again.

Cynthia M. Burke, http://www.nyrealtylaw.com

Housing Bubble

Cynthia Burke — Fri, 14 Sep 2007 22:20:00 GMT

Everyone knows that housing prices are down from the past two years. Houses on my street in Baldwin were selling for a high as $500,000 approximately two years ago. That lasted for about three months, when the prices started going down steadily.

What’s causing all the foreclosures is the lending practices of the subprime lenders. Some of the practices were fraudulent, where mortgage brokers did creative lending, not giving the true picture to the banks and ultimately the investor who purchased the loan. A person with marginal credit and income would be given a one hundred percent loan, to cover both the purchase price and closing costs, but the mortgage would be extremely onerous to the borrower. For example, usually a first and second mortgage would be given. The first mortgage would be a thirty year fixed with a reasonable intrest rate, but the second would be adjustable with a very high rate. Also, because of inflated appraisals, the mortgage would be higher than the actual market value of the house. With no investment and no equity in the house, it would be easy for such a person to walk away from the house and just let it fall into foreclosure. The owners could actually live there for a couple of years, without paying anything, until the foreclosure was complete, and a further eviction procedure was commenced. It could be tied up in court for a long time. It doesn’t seem fair to the bank, but they are the ones who convinced the buyer to take one or more mortgages he or she couldn’t afford. Add that to the fact that real estate taxes are so high on Long Island, and keep going up each year. Plus the high cost of utilities.

The inflation of appraisals is bad for the neighborhood, because it artificially inflates market value. When someone next door to you buys based upon an inflated appraisal, and cash out the phantom equity, that information gets reported to the local assessor’s office. This can cause your real estate taxes to go up. However, now try to sell your property for that amount.

Many mortgage brokers selling subprime mortgages have gone out of business, but I am sure there are still many out there. As a seller, don’t be a party to the fraud by allowing your contract to be amended to a price well above the real purchase price. This is a way for a purchaser to get a higher mortgage (practically one hundred percent of equity or more). The seller doesn’t receive the money, and it is couched as a “gift of equity” or a promise to make repairs, or whatever the mortgage broker comes up with creatively. I consider this to be a fraud on the lender. A seller’s concession may be okay depending upon the circumstances. According to the New York State Bar Ethics Committee is it only okay if it is totally legal, it is disclosed to all parties and on all documents, and no party is prejudiced. That seems like it would be difficult to determine under all the circumstances.

Cynthia M. Burke, http://www.nyrealtylaw.com

Title Insurance for Cooperatives, Eagle 9, New York

Cynthia Burke — Wed, 12 Sep 2007 22:20:00 GMT

First American Title Insurance Company is offering a product called Eagle 9, which is akin to title insurance for real property. Typically, purchasers of a co-op obtain a lien search to determine whether there are any liens against the owner, or UCC’s filed by a bank to secure a loan against the unit or building. In most cases, no further title insurance is purchased by the purchaser, and if any problems arise with respect to title or liens, there will be no insurance protection. Prior to Eagle 9 and currently, a TIRSA endorsement has been available (title insurance for co-ops), which was probably thought too expensive and not worth purchasing.

An Eagle 9 policy is relatively inexpensive for the coverage it provides. It provides coverage should it turn out that the purchaser does not have proper ownership, if a prior owner comes out of the woodwork and proves he still owns the co-op. It protects against federal tax liens that won’t be found by a typical search (because they could be filed out of state); against liens that arise between the gap of the search and the closing, and various other title problems that could be determined after the closing.

Considering the substantial investment that many make to purchase aÂ co-op, the cost of the Eagle 9 policy, which is far less than title insurance for real property or the TIRSA endorsement, would be a worthwhile investment for peace of mind.

Cynthia M. Burke, http://www.nyrealtylaw.com

Seller's Closing Costs

Cynthia Burke — Sun, 19 Aug 2007 22:20:00 GMT

Obviously, closing costs are a major concern of purchasers of real estate. Sellers also need to be aware of what costs they will incur upon the sale of their premises. The typical seller’s closing costs are as follows for the sale of real property, including condominiums. The real estate broker’s fee and transfer tax also apply to the sale of a cooperative.

(1) The seller typically pays the real estate broker’s fee due, if any.

(2) The seller typically pays transfer taxes. New York State has a transfer tax of .004 percent. Any property in New York City carries an additional one percent (1%) transfer tax on properties $500,000 or less. Anything above that carries an additionalÂ transfer tax of 1-1/4%. A Transfer tax on a New York City property can be substantial.

Other muncipalities in New York, such as Yonkers, have their own transfer tax. This must be determined on a case by case basis.

Note that the “mansion tax” of one percent (1%) on properties with purchase prices over $1,000,000 is paid by the Purchaser. The transfer tax levied by properties located in Peconic, Long Island, is also paid by the Purchaser.

(3) If a seller in New York does not provide the statutory Property Condition Disclosure, then the purchaser shall receive a $500 credit at the closing. This cannot be couched as a reduction in the purchase price on the contract, and no credit given at closing. This does not apply to a cooperative, a commercial property, or a sale by an estate or other fiduciary.

(4) Property taxes not yet paid, but a lien, will be a credit to the purchaser prorated up until the date of the closing. For example, school tax on Long Island is not due until October, although it covers the period July 1st to December 31st. Hence, if you close in August, the purchaser will be paying the full tax due in October, and will get a credit from July 1st to the date of closing from the seller.

(5) If the contract provides that the seller is giving the purchaser a seller’s concession towards closing costs, this amount is deducted from the purchase price. The seller will receive a credit for the transfer tax attributable to the seller’s concession amount.

(6) The contract must be consulted to determine any other credits given to the purchaser by the seller for specific issues with the property.

(7) If there is a mortgage on the property, the title closer will usually charge a “pick up” fee per mortgage in the approximate amount of $175-$200. This is their compensation for confirming the pay-off amount, taking the pay-off check at the closing, and arranging for express delivery to the mortgage company.

(8) The seller will pay the recording fee for the Satisfaction of Mortgage. Lately, banks have been adding this cost to their pay-off, since they are required to forward a Satisfaction directly to the recording office of your county. Sometimes the title company will put this on their bill, but they are not allowed to charge you if the bank is charging you directly.

(9) If the sale is subject to a tenant, the seller will need to transfer the security deposit to the purchaser. Rent will be prorated to the date of closing.

(10) If the property has oil heat, the seller should obtain an oil dip from its oil company, with a receipt for the value of the oil, and the seller will get a credit for that amount from the purchaser.

(11) The seller may have to give the purchaser a credit for the prorated amount of the next water bill attributable to the seller. It is advisable to get a final reading near the closing, so the exact amount will be known.

(12) If the seller stays over beyond the closing date (in order to have time to move, or close on their purchase), which is usually limited to a five to seven day period, adjustments, including purchaser’s per diem interest on their mortgage, is calculated until the date of possession. If the seller stays beyond the agreed upon five to seven day period, there is an additional penalty of approximately $150-200 per day added to the adjustments.

(12) Seller’s attorney’s fee.

The above is a general guideline with respect to seller’s costs, deductions and credits. The seller’s attorney will determine which ones are applicable, and arrange for them at closing.

Cynthia M. Burke, http://www.nyrealtylaw.com

Landlord Tenant Law, Long Island, NY

Cynthia Burke — Thu, 09 Aug 2007 22:35:00 GMT

Both tenants and landlords should be aware of the thirty day notice rule in Nassau and Suffolk Counties with respect to holdover proceedings.Â This is the type of proceeding that is necessary when you wish to evict the tenant, even if rent is current, or the tenant is willing to bring the rent current in court.Â If there is a Lease, and the rent is current, you will need to prove some other breach of the Lease.Â In a holdover proceeding,Â a landlord must first give a thirty day notice to evict stating the grounds for removal.Â This notice must be served before the 1st of the month in order to give someone notice that they are to leave by the end of that month.Â Â If a notice were served after the first of any given month, it must specify the last day of the following month as the date for the tenant to vacateÂ (be careful if there are 31 days in the following month – the 31st day must be specified).Â Â

If the tenant does not vacate, there are no self-help remedies.Â A landlord must then bring a summary proceeding with the landlord tenant court in the jurisdiction of the property.Â Remember to make an indication of when the thirty day notice was served, and attach an Affidavit of Service to a copy of the Thirty Day Notice, which needs to be brought to court.Â The Thirty Day Notice should be referenced in the Petition, including the date and manner of service, and the best practice would be to attach the Thirty Day Notice and Affidavit of Service to the Petition.Â Otherwise, the Petition may be dismissed based on a jurisdictional defect.

If a Petition is brought against a tenant for non-payment of rent, and there is a Lease, then the Lease must be consulted to determine if there are any notice requirements, and the manner of service.Â It would be a good idea to attach the notice and affidavit of service to the Petition.

If a landlord wishes to obtain a Judgment for past due rent on default, in case the tenant does not appear in court, then the tenant must be served personally with the petition.Â I have also seen at least one judge allow three attempts in giving a Judgment. Â Otherwise, the only remedy will be for a warrant of eviction, without a stay, but no money judgment.Â

Cynthia M. Burke, http://www.nyrealtylaw.com