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YOU’RE GOING TO SELL YOUR HOUSE -BE PREPARED TO MAKE DISCLOSURES

February 9, 2024 | By: Jeffrey L. Nogee

Starting on March 20, 2024, sellers of one to four family residential properties in New York State must provide the buyer a completed and detailed Property Condition Disclosure Statement (“PCDS”) prior to the buyer signing the contract. Unlike prior law in New York where a seller could avoid providing a disclosure statement by giving the seller a $500.00 credit at closing, this new law is MANDATORY (RPL §460 et seq.). A copy of the statutory form, with 48 questions to answer, is below. The information required in the PCDS includes: – General information about the property; – Environmental information such as whether the property is in a flood zone, whether there is any history of mold, etc.) – Information about the home’s structural and mechanical systems (heating, plumbing, electrical, roof, etc.) While the PCDS provides that it is not intended to be a warranty of any of the information, the seller has to certify that the information is true and complete to the seller’s actual knowledge (although an independent investigation is not required – yet). A seller who willfully fails to provide the PCDS or is untruthful can be sued for the buyer’s actual damages among other things. Note that the statute provides for a few exemptions, the most notable of which is that fiduciaries (such as executors and trustees) do not have to provide the form. Also, transfers to direct family members are exempt as are purchases of new construction. As with any new law, it remains to be seen how the courts will interpret it. It also remains to be seen how sellers will react. For example, will they increase the asking price to take into account the additional time, expense (e.g. attorney assistance in completing the form) and potential liability arising from the mandatory PCDS?

>>>>>>>>>>>>>>>>>>>>>>>> PROPERTY CONDITION DISCLOSURE STATEMENT<<<<<<<<<<<<<<<<<<<<<<<<

NAME OF SELLER OR SELLERS:

PROPERTY ADDRESS:

THE PROPERTY CONDITION DISCLOSURE ACT REQUIRES THE SELLER OF RESIDENTIAL REAL PROPERTY TO CAUSE THIS DISCLOSURE STATEMENT OR A COPY THEREOF TO BE DELIVERED TO A BUYER OR BUYER’S AGENT PRIOR TO THE SIGNING BY THE BUYER OF A BINDING CONTRACT OF SALE. PURPOSE OF STATEMENT:  THIS IS A STATEMENT OF CERTAIN CONDITIONS AND INFORMATION CONCERNING THE PROPERTY KNOWN TO THE SELLER. THIS DISCLOSURE STATEMENT IS NOT A WARRANTY OF ANY KIND BY THE SELLER OR BY ANY AGENT REPRESENTING THE SELLER IN THIS TRANSACTION. IT IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR TESTS AND THE BUYER IS ENCOURAGED TO OBTAIN HIS OR HER OWN INDEPENDENT PROFESSIONAL INSPECTIONS AND ENVIRONMENTAL TESTS AND ALSO IS ENCOURAGED TO CHECK PUBLIC RECORDS PERTAINING TO THE PROPERTY. A KNOWINGLY FALSE OR INCOMPLETE STATEMENT BY THE SELLER ON THIS FORM MAY SUBJECT THE SELLER TO CLAIMS BY THE BUYER PRIOR TO OR AFTER THE TRANSFER OF TITLE. IN THE EVENT A SELLER FAILS TO PERFORM THE DUTY PRESCRIBED IN THIS ARTICLE TO DELIVER A DISCLOSURE STATEMENT PRIOR TO THE SIGNING BY THE BUYER OF A BINDING CONTRACT OF SALE, THE BUYER SHALL RECEIVE UPON THE TRANSFER OF TITLE A CREDIT OF FIVE HUNDRED DOLLARS AGAINST THE AGREED UPON PURCHASE PRICE OF THE RESIDENTIAL REAL PROPERTY. “RESIDENTIAL REAL PROPERTY” MEANS REAL PROPERTY IMPROVED BY A ONE TO FOUR FAMILY DWELLING USED OR OCCUPIED, OR INTENDED TO BE USED OR OCCUPIED, WHOLLY OR PARTLY, AS THE HOME OR RESIDENCE OF ONE OR MORE PERSONS, BUT SHALL NOT REFER TO (A) UNIMPROVED REAL PROPERTY UPON WHICH SUCH DWELLINGS ARE TO BE CONSTRUCTED OR (B) CONDOMINIUM UNITS OR COOPERATIVE APARTMENTS OR (C) PROPERTY ON A HOMEOWNERS’ ASSOCIATION THAT IS NOT OWNED IN FEE SIMPLE BY THE SELLER. INSTRUCTIONS TO THE SELLER: (a) ANSWER ALL QUESTIONS BASED UPON YOUR ACTUAL KNOWLEDGE. (b) ATTACH ADDITIONAL PAGES WITH YOUR SIGNATURE IF ADDITIONAL SPACE IS REQUIRED. (c) COMPLETE THIS FORM YOURSELF. (d) IF SOME ITEMS DO NOT APPLY TO YOUR PROPERTY, CHECK “NA” (NON-APPLICABLE).  IF YOU DO NOT KNOW THE ANSWER CHECK “UNKN” (UNKNOWN). SELLER’S STATEMENT:  THE SELLER MAKES THE FOLLOWING REPRESENTATIONS TO THE BUYER BASED UPON THE SELLER’S ACTUAL KNOWLEDGE AT THE TIME OF SIGNING THIS DOCUMENT. THE SELLER AUTHORIZES HIS OR HER AGENT, IF ANY, TO PROVIDE A COPY OF THIS STATEMENT TO A PROSPECTIVE BUYER OF THE RESIDENTIAL REAL PROPERTY. THE FOLLOWING ARE REPRESENTATIONS MADE BY THE SELLER AND ARE NOT THE REPRESENTATIONS OF THE SELLER’S AGENT. GENERAL INFORMATION 1. HOW LONG HAVE YOU OWNED THE PROPERTY? 2. HOW LONG HAVE YOU OCCUPIED THE PROPERTY? 3. WHAT IS THE AGE OF THE STRUCTURE OR STRUCTURES?  NOTE TO BUYER–IF THE STRUCTURE WAS BUILT BEFORE 1978 YOU ARE ENCOURAGED TO INVESTIGATE FOR THE PRESENCE OF LEAD BASED PAINT. 4. DOES ANYBODY OTHER THAN YOURSELF HAVE A LEASE, EASEMENT OR ANY OTHER RIGHT TO USE OR OCCUPY ANY PART OF YOUR PROPERTY OTHER THAN THOSE STATED IN DOCUMENTS AVAILABLE IN THE PUBLIC RECORD, SUCH AS RIGHTS TO USE A ROAD OR PATH OR CUT TREES OR CROPS.  YES NO UNKN NA 5. DOES ANYBODY ELSE CLAIM TO OWN ANY PART OF YOUR PROPERTY?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 6. HAS ANYONE DENIED YOU ACCESS TO THE PROPERTY OR MADE A FORMAL LEGAL CLAIM CHALLENGING YOUR TITLE TO THE PROPERTY?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 7. ARE THERE ANY FEATURES OF THE PROPERTY SHARED IN COMMON WITH ADJOINING LAND OWNERS OR A HOMEOWNERS ASSOCIATION, SUCH AS WALLS, FENCES OR DRIVEWAYS?  YES NO UNKN NA  (IF YES DESCRIBE BELOW) 8. ARE THERE ANY ELECTRIC OR GAS UTILITY SURCHARGES FOR LINE EXTENSIONS, SPECIAL ASSESSMENTS OR HOMEOWNER OR OTHER ASSOCIATION FEES THAT APPLY TO THE PROPERTY?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 9. ARE THERE CERTIFICATES OF OCCUPANCY RELATED TO THE PROPERTY?  YES NO UNKN NA  (IF NO, EXPLAIN BELOW) ENVIRONMENTAL NOTE TO SELLER – IN THIS SECTION, YOU WILL BE ASKED QUESTIONS REGARDING PETROLEUM PRODUCTS AND HAZARDOUS OR TOXIC SUBSTANCES THAT YOU KNOW TO HAVE BEEN SPILLED, LEAKED OR OTHERWISE BEEN RELEASED ON THE PROPERTY OR FROM THE PROPERTY ONTO ANY OTHER PROPERTY. PETROLEUM PRODUCTS MAY INCLUDE, BUT ARE NOT LIMITED TO, GASOLINE, DIESEL FUEL, HOME HEATING FUEL, AND LUBRICANTS. HAZARDOUS OR TOXIC SUBSTANCES ARE PRODUCTS THAT COULD POSE SHORT- OR LONG-TERM DANGER TO PERSONAL HEALTH OR THE ENVIRONMENT IF THEY ARE NOT PROPERLY DISPOSED OF, APPLIED OR STORED. THESE INCLUDE, BUT ARE NOT LIMITED TO, FERTILIZERS, PESTICIDES AND INSECTICIDES, PAINT INCLUDING PAINT THINNER, VARNISH REMOVER AND WOOD PRESERVATIVES, TREATED WOOD, CONSTRUCTION MATERIALS SUCH AS ASPHALT AND ROOFING MATERIALS, ANTIFREEZE AND OTHER AUTOMOTIVE PRODUCTS, BATTERIES, CLEANING SOLVENTS INCLUDING SEPTIC TANK CLEANERS, HOUSEHOLD CLEANERS AND POOL CHEMICALS AND PRODUCTS CONTAINING MERCURY AND LEAD. NOTE TO BUYER – IF CONTAMINATION OF THIS PROPERTY FROM PETROLEUM PRODUCTS AND/OR HAZARDOUS OR TOXIC SUBSTANCES IS A CONCERN TO YOU, YOU ARE URGED TO CONSIDER SOIL AND GROUNDWATER TESTING OF THIS PROPERTY. 10. IS ANY OR ALL OF THE PROPERTY LOCATED IN A DESIGNATED FLOODPLAIN?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 11. IS ANY OR ALL OF THE PROPERTY LOCATED IN A DESIGNATED WETLAND?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 12. IS THE PROPERTY LOCATED IN AN AGRICULTURAL DISTRICT?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 13. WAS THE PROPERTY EVER THE SITE OF A LANDFILL?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 14. ARE THERE OR HAVE THERE EVER BEEN FUEL STORAGE TANKS ABOVE OR BELOW THE GROUND ON THE PROPERTY?  YES NO UNKN NA IF YES, ARE THEY CURRENTLY IN USE?  YES NO UNKN NA  LOCATION(S)  ARE THEY LEAKING OR HAVE THEY EVER LEAKED?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 15. IS THERE ASBESTOS IN THE STRUCTURE?  YES NO UNKN NA  (IF YES, STATE LOCATION OR LOCATIONS BELOW) 16. IS LEAD PLUMBING PRESENT?  YES NO UNKN NA  (IF YES, STATE LOCATION OR LOCATIONS BELOW) 17. HAS A RADON TEST BEEN DONE?  YES NO UNKN NA  (IF YES, ATTACH A COPY OF THE REPORT) 18. HAS MOTOR FUEL, MOTOR OIL, HOME HEATING FUEL, LUBRICATING OIL OR ANY OTHER PETROLEUM PRODUCT, METHANE GAS, OR ANY HAZARDOUS OR TOXIC SUBSTANCE SPILLED, LEAKED OR OTHERWISE BEEN RELEASED ON THE PROPERTY OR FROM THE PROPERTY ONTO ANY OTHER PROPERTY?  YES NO UNKN NA  (IF YES, DESCRIBE BELOW) 19. HAS THE PROPERTY BEEN TESTED FOR THE PRESENCE OF MOTOR FUEL, MOTOR OIL, HOME HEATING FUEL, LUBRICATING OIL, OR ANY OTHER PETROLEUM PRODUCT, METHANE GAS, OR ANY HAZARDOUS OR TOXIC SUBSTANCE?  YES NO UNKN NA  (IF YES, ATTACH REPORT(S)) STRUCTURAL 20. IS THERE ANY ROT OR WATER DAMAGE TO THE STRUCTURE OR STRUCTURES?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 21. IS THERE ANY FIRE OR SMOKE DAMAGE TO THE STRUCTURE OR STRUCTURES?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 22. IS THERE ANY TERMITE, INSECT, RODENT OR PEST INFESTATION OR DAMAGE?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 23. HAS THE PROPERTY BEEN TESTED FOR TERMITE, INSECT, RODENT OR PEST INFESTATION OR DAMAGE?  YES NO UNKN NA  (IF YES, PLEASE ATTACH REPORT(S)) 24. WHAT IS THE TYPE OF ROOF/ROOF COVERING (SLATE, ASPHALT, OTHER.)?  ANY KNOWN MATERIAL DEFECTS?  HOW OLD IS THE ROOF?  IS THERE A TRANSFERABLE WARRANTEE ON THE ROOF IN EFFECT NOW?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 25. ARE THERE ANY KNOWN MATERIAL DEFECTS IN ANY OF THE FOLLOWING STRUCTURAL SYSTEMS:  FOOTINGS, BEAMS, GIRDERS, LINTELS, COLUMNS OR PARTITIONS.  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) MECHANICAL SYSTEMS & SERVICES 26. WHAT IS THE WATER SOURCE (CIRCLE ALL THAT APPLY – WELL, PRIVATE, MUNICIPAL, OTHER)?  IF MUNICIPAL, IS IT METERED?  YES NO UNKN NA 27. HAS THE WATER QUALITY AND/OR FLOW RATE BEEN TESTED?  YES NO UNKN NA  (IF YES, DESCRIBE BELOW) 28. WHAT IS THE TYPE OF SEWAGE SYSTEM (CIRCLE ALL THAT APPLY – PUBLIC SEWER, PRIVATE SEWER, SEPTIC OR CESSPOOL)?  IF SEPTIC OR CESSPOOL, AGE?  __________ DATE LAST PUMPED?  __________ FREQUENCY OF PUMPING?  __________ ANY KNOWN MATERIAL DEFECTS?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 29. WHO IS YOUR ELECTRIC SERVICE PROVIDER?  __________ WHAT IS THE AMPERAGE?  __________ DOES IT HAVE CIRCUIT BREAKERS OR FUSES?  __________ PRIVATE OR PUBLIC POLES?  __________ ANY KNOWN MATERIAL DEFECTS?  YES NO UNKN NA  (IF YES, EXPLAIN BELOW) 30. ARE THERE ANY FLOODING, DRAINAGE OR GRADING PROBLEMS THAT RESULTED IN STANDING WATER ON ANY PORTION OF THE PROPERTY?  YES NO UNKN NA  (IF YES, STATE LOCATIONS AND EXPLAIN BELOW) 31. DOES THE BASEMENT HAVE SEEPAGE THAT RESULTS IN STANDING WATER?   YES NO UNKN NA  (IF YES, EXPLAIN BELOW) ARE THERE ANY KNOWN MATERIAL DEFECTS IN ANY OF THE FOLLOWING  (IF YES, EXPLAIN BELOW.  USE ADDITIONAL SHEETS IF NECESSARY.): 32. PLUMBING SYSTEM? YES NO UNKN NA 33. SECURITY SYSTEM? YES NO UNKN NA 34. CARBON MONOXIDE DETECTOR? YES NO UNKN NA 35. SMOKE DETECTOR? YES NO UNKN NA 36. FIRE SPRINKLER SYSTEM? YES NO UNKN NA 37. SUMP PUMP? YES NO UNKN NA 38. FOUNDATION/SLAB? YES NO UNKN NA 39. INTERIOR WALLS/CEILINGS? YES NO UNKN NA 40. EXTERIOR WALLS OR SIDING? YES NO UNKN NA 41. FLOORS? YES NO UNKN NA 42. CHIMNEY/FIREPLACE OR STOVE? YES NO UNKN NA 43. PATIO/DECK? YES NO UNKN NA 44. DRIVEWAY? YES NO UNKN NA 45. AIR CONDITIONER? YES NO UNKN NA 46. HEATING SYSTEM? YES NO UNKN NA 47. HOT WATER HEATER? YES NO UNKN NA 48. THE PROPERTY IS LOCATED IN THE   FOLLOWING SCHOOL DISTRICT          UNKN NOTE:  BUYER IS ENCOURAGED TO CHECK PUBLIC RECORDS CONCERNING THE PROPERTY (E.G. TAX RECORDS AND WETLAND AND FLOOD PLAIN MAPS) THE SELLER SHOULD USE THIS AREA TO FURTHER EXPLAIN ANY ITEM ABOVE. IF NECESSARY, ATTACH ADDITIONAL PAGES AND INDICATE HERE THE NUMBER OF ADDITIONAL PAGES ATTACHED. SELLER’S CERTIFICATION:  SELLER CERTIFIES THAT THE INFORMATION IN THIS PROPERTY CONDITION DISCLOSURE STATEMENT IS TRUE AND COMPLETE TO THE SELLER’S ACTUAL KNOWLEDGE AS OF THE DATE SIGNED BY THE SELLER. IF A SELLER OF RESIDENTIAL REAL PROPERTY ACQUIRES KNOWLEDGE WHICH RENDERS MATERIALLY INACCURATE A PROPERTY CONDITION DISCLOSURE STATEMENT PROVIDED PREVIOUSLY, THE SELLER SHALL DELIVER A REVISED PROPERTY CONDITION DISCLOSURE STATEMENT TO THE BUYER AS SOON AS PRACTICABLE. IN NO EVENT, HOWEVER, SHALL A SELLER BE REQUIRED TO PROVIDE A REVISED PROPERTY CONDITION DISCLOSURE STATEMENT AFTER THE TRANSFER OF TITLE FROM THE SELLER TO THE BUYER OR OCCUPANCY BY THE BUYER, WHICHEVER IS EARLIER. SELLER___________________________________________ DATE_____________________________________________ SELLER___________________________________________ DATE_____________________________________________ BUYER’S ACKNOWLEDGMENT:  BUYER ACKNOWLEDGES RECEIPT OF A COPY OF THIS STATEMENT AND BUYER UNDERSTANDS THAT THIS INFORMATION IS A STATEMENT OF CERTAIN CONDITIONS AND INFORMATION CONCERNING THE PROPERTY KNOWN TO THE SELLER. IT IS NOT A WARRANTY OF ANY KIND BY THE SELLER OR SELLER’S AGENT AND IS NOT A SUBSTITUTE FOR ANY HOME, PEST, RADON OR OTHER INSPECTIONS OR TESTING OF THE PROPERTY OR INSPECTION OF THE PUBLIC RECORDS. BUYER____________________________________________ DATE_____________________________________________ BUYER____________________________________________ DATE_____________________________________________   

 

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Your Will During COVID-19: To Do or Not To Do

February 10, 2022 | By: Jeffrey L. Nogee

An article in the Wall Street Journal (December 6, 2021) noted that “young adults act to get affairs in order, citing unease over pandemic…”  The current global virus certainly has made everyone focus on issues of sickness and mortality, but the reasons for having a Will have not changed.

If you live in New York State, the law provides for the transfer of your assets owned at your death.  There are rules and procedures if you have a will and even if you do not have a will.  In either case, however, the rules apply only to those assets you own in your own name alone at that time.

A will does not cover anything you won jointly with another, for accounts with named beneficiaries (including bank, brokerage, life insurance, and the like) or living trusts (that is, trusts created while you are alive as opposed to trusts created in your will).

The benefits of having a valid will include:

          – directing how and to whom your assets will go after you die;

          – directing how your debts, expenses and even taxes will be paid

          – setting up an estate plan to minimize estate taxes;

          – making arrangements for the care of a surviving spouse, minor children and persons with special needs;

          – choosing who will be the guardian of your minor child if you and your spouse die at the same time or if the surviving spouse is unfit or otherwise unable or unqualified to be the guardian;

          – choosing who will be handling your estate (the executor and perhaps one or more trustees) to ensure that your wishes are carried out; and

          – other cost savings such as directing that the executor does not have to file a bond with the court.  (One requirement before being appointed is that an executor must file a financial surety bond to insure that the beneficiaries are protected if the executor mis-performs or even absconds with estate assets).

If you do not have a will, then the law sets out a schedule for who inherits your assets and who will be appointed to administer your estate as well as who might serve as guardian of your minor children.

Even if you have a written will, the document must be admitted to probate, meaning the Surrogate’s Court (a specialized court that generally handles matters involving people who have died) must review the will and related required documents and determine that it meets that statutory requirements.  Those requirements include:

          – Signing at the end in front of two witnesses who also must sign;

          – Having the mental capacity to make a will; and

          – Being made by the exercise of free will and not the product of fraud or undue influence of another

Until the will is admitted to probate and the executor is appointed, no one is empowered to act for the estate of the person who died. (Exceptions for preliminary appointment in emergency situations exist.)

These rules and requirements can lead to costly and lengthy litigation known as will contests where possible heirs seek to invalidate the will.  Careful drafting and planning are needed, therefore, in an effort to avoid such contests.

Even then, if enough money is involved (it’s almost always about money), a will contest may still occur.

For those young adults interested in getting their affairs in order, seeking the advice of an attorney experienced in trust and estate law should be the first step.

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Your computer is not your friend

October 31, 2021 | By: Jeffrey L. Nogee 

I recently helped a client who came in with an unusual problem.His Internet service provider (ISP) sent him a notice that it had received a subpoena in a Federal Court case seeking disclosure of his identity and personal information.

Upon review it turned out that he was being sued for copyright infringement for allegedly downloading and distributing copyrighted videos from an adult entertainment producer.The plaintiff only could identify the IP address of the computer and the ISP, so they developed a clever plan to threaten to expose the individual and make his name public through use of the subpoena to the ISP.

All of this while the individual did not seek out the material, did not knowingly download it and did not distribute it.But his computer did through a program called BitTorrent (BT).While BT is not illegal – it simply is a peer-to-peer file sharing protocol – its use to download copyrighted material without permission is a violation of the Federal copyright laws.The key to BT is that it would break files down into “bits” which are distributed among users and then can be reassembled into a whole movie or other file.

The copyright holder had developed a kind of spyware that could detect whenever bits were downloaded and shared and could geotrace them to individual IP addresses and locales.Their attorneys then filed hundreds of lawsuits in Federal District Courts around the state alleging copyright infringement seeking statutory damages of $750.00 per incident as well as actual damages for illegal distribution (the sharing part of BT) in six figures.

Relying on the threat of publicly identifying the alleged infringer and his alleged actions, the copyright holder and its attorneys were interested in quick and dirty settlements without bothering with things like proof or evidence beyond the geotracing and IP address.This resulted in negotiation of a relatively small settlement payment on the condition of maintaining anonymity and no further court activity.

All because the individual had BT activated on his computer which operated independently in the background and fell prey to “copyright trolls” – a term associated with outfits that leverage copyright ownership to bring questionable lawsuits to extort settlements.According to Wikipedia, “In the United States, more than 200,000 lawsuits have been filed for copyright infringement on BitTorrent since 2010.”

Tip: if the copyright trolls come after you, you do have the right to defend yourself, but better to keep a close watch on who or what your computer is talking to over the Internet.

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