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Attorney Stuart Saft Answers Your Real Estate Questions

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Curbed University delivers insider tips and non-boring advice on how to buy, sell, or rent a home or apartment. Additional questions welcomed to tips@curbed.com. Today's topic: a real estate expert answers your questions!

Real estate attorney Stuart Saft of Holland & Knight visited the Curbed University open thread this past Friday to take questions from all of you. Here are his answers:

While the advantages of being represented by a real estate attorney are clear, is it advisable to rely solely on this attorney's advise and services throughout a sale or purchase, or are a real estate broker's services still needed?

Unlike many other locations throughout the country, in New York, the lawyer and the broker perform two different functions. The broker identifies the properties and assists you in negotiating the price and the terms, while the attorney prepares the contract, checks title, makes certain that the buyer is acquiring everything that he or she expects, prepares or reviews the closing documents and any financing documents, and,  if you are buying a new co-op or condominium, the attorney reviews the Offering Plan and advises the buyer on any issues contained in it, or, if you are buying an existing co-op or condominium, reviews the board minutes to see if there are issues of which you should be aware. In either event, attorney also represents you at the closing. One other important difference is that there is a potential conflict of interest between the roles the two professionals play--the attorney gets paid by you regardless of whether the closing occurs and the broker only gets paid if the closing occurs, which means that a broker's advice may be tinged with self interest.

I signed a contract for my condo in July on a new building. They said that closing should have happened in October but we still have not closed and now they are too scared to even say a date. Is there anything that we can do legally?

Sponsors are not usually scared to set dates, but frequently the events leading up to a closing are not completely within the sponsor's control. As a result of the sale of a co-op or a condominium being a sale of a security in New York State, which is carefully monitored by the New York State Attorney General ("AG"), the sponsor may not be able to accurately set a date at this time. In order to close, the sponsor is required to have an amendment accepted by the AG, which declares the Plan effective and there is not control over how long the AG may take to review the amendment before accepting it for filing. The closing cannot occur until the Effectiveness Amendment is accepted, which enables the sponsor to have the Condominium Declaration recorded with New York City, and the  Condominium is not actually formed until NYC records the Declaration, which involves reviews by the Department of Buildings, Department of Finance, and the City Surveyor, and all four of the City and State agencies have had to reduce their staffs as a result of budget cuts. Finally, a closing cannot be scheduled until the unit has a Temporary Certificate of Occupancy, which requires review of the building and the unit by several different departments in the Department of Buildings. It is also possible that the sponsor's construction lender is requiring that a certain minimum number of closings occur at the same time before allowing the closings to commence. Rather than deal with the sales office, you may want to have your attorney contact the sponsor's attorney to find out whether there is a problem.

My coop debited my checking account for repairs made to my radiators, despite the fact that our proprietary lease makes the building responsible for "heating equipment that is part of the standard building equipment." Wouldn't radiators fall into that category, especially since they are original to the building and I have no control over their operation? Also, my radiators are enclosed in original metal covers integrated into the walls, so are arguably pipes and fixtures that are within the walls (also the building's responsibility under the lease). I can't get the coop to budge - should I take them to small claims court?

The co-op does not have the right to debit your checking account unless you have given them the right to do so and, the fact that you have signed up for automatic maintenance payments, would not automatically give the board the right to debit the account unless you authorized it. It is also possible that the co-op did maintenance to all the radiators in the building and charged all the shareholders for their pro rata (based on the share allocation) share of the costs. You could take the co-op to small claims court, but a better first step is to determine whether they did it to every shareholder or just a few. Also, with spring here, you should be having your annual meeting shortly, and that is certainly a question that you can ask during the New Business portion of the meeting.

What are the potential repercussions for a landlord and broker for moving a tenant into a building that doesn't have a C of O?

It is a problem for the landlord because the landlord will be unable to evict a non-rent-paying tenant and if there is a casualty or liability arising from an incident in the building, the landlord's insurance company will probably disclaim coverage. It is also a problem for the tenant because a building without a C of O is probably missing some life safety systems or does not otherwise comply with the NYC Codes.??

Who provides the best information to first time apartment buyers to read? Is it on a particular web site or a published check list of "the 20 most important questions to ask before making an offer." 

The Office of the New York State Attorney General has pamphlets on many subject of importance to home buyers. In addition, the US Department of Housing and Urban Development (HUD), the Federal Housing Authority (FHA), Fannie Mae, and most banks that make home mortgage loans provide written advice to home buyers.

??How do I stop a builder who  makes up additional costs? When I argue with him he simply says he will put a lien on my place.

It depends on the nature of your relationship. If you signed a contract with the builder and gave the builder the authority to build a specific project, than you may be bound by the agreement. Conversely, if the builder agreed to build something for a specific cost, you cannot be obligated to pay for additional costs unless you agreed. Finally, if you do not have a written agreement with the builder, you can contact the New York City Department of Consumer Affairs. However, no one should ever enter into an agreement with a builder without a written agreement that clearly spells out the obligations of both parties. By the way, the fact that he is threatening to put a lien on your place is important, but not determinative of what you may or may not owe the builder. He can place the lien, but he cannot foreclose it without going to court and demonstrating to a judge that it is absolutely accurate. If the lien is inaccurate or inflated or he did not have the right to put the lien on your property, the court could find that you do not owe him anything. Speak to a lawyer as soon as possible but certainly when he records a lien.??

I live in a Coop.  The by-laws say that there will be an annual meeting in June of each year. I moved in in January of 2010. There was a board meeting in October of 2011.  It was scheduled at a school, 6 blocks away on Halloween night! Since then, there hasn't been a meeting. I've written to the building manager (who sits on the board) and I get get a response that essentially says "any day now" or I get no response. His last response said the board had scheduled a meeitng for May 16 but we haven't received notification of the meeting. Any insights?  Can the board ignore their own by-laws?

No, the board cannot ignore the By-Laws. All housing co-ops in New York are subject to the New York Business Corporation Law, which mandate annual meetings of shareholders, so the board's failure to call the annual meeting is a violation of both the By Laws and the BCL. The meeting has to be called, but if there is no quorum at the meeting, the meeting does not have to be held, although some corporations hold the informational part and do not take any votes. The fact that the meeting has not been held does not negate the actions that the board has taken, but if a shareholders' meeting has not been held for 13 months, than the shareholders can get a court order requiring that the meeting be held.
· Ask Attorney Stuart Saft All of Your Real Estate Questions [Curbed]
· Curbed University archive [Curbed]