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Who is responsible when your sewer line breaks in New York?

If you live in an older home built before the 1980’s, it is quite likely that your sewer line has by far exceeded its expected useful life and now it is not simply a matter of if it will fail, but when, leading to disastrous and expensive repairs. Most homeowners are not aware they are responsible for their sewer service lines.[1] In New York, homeowners are required to maintain the sewer lateral from their home to the main sewer line, typically located under the street or nearby easement area.[2]

When a homeowner is first made aware of a broken sewer line it is natural to assume that the municipality is responsible for the portion of the line located outside of the house and they are often frustrated when their local government refuses to provide assistance. So, why can’t a municipality help? In short, it is unconstitutional.

The New York State Constitution contains a provision specifically regulating gifts or loans of public monies to private persons and/or entities. Specifically the law states: “[n]o county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation, or association, or private undertaking….”[3] This provision limits a municipality’s expenditures to ensure that the focus of municipal spending is the public good and that municipal resources are used solely for governmental purposes. In other words, this clause serves as a way to control the use of municipal monies and resources.

Well, what is a public purpose then? A public purpose is defined as “something necessary for the common good and general welfare of the people of the municipality, sanctioned by its citizens [and] public character.”[4] If municipal resources are used to provide a purely private benefit, they are not being used for a governmental purpose.[5] This would be an unconstitutional gift from a municipality to a private entity or person.[6]

With respect to a homeowner’s sewer line, the municipality has no authority over it (does not own it) and has no responsibility to maintain it[7]. Therefore, without the legal obligation to maintain the sewer line, there is no governmental purpose, and any such use of public funding, resources (personnel), or equipment to maintain same would not be permissible because the intended beneficiary would be the private property owner, not the public.

In summary, if the municipality goes beyond the boundaries of its obligations, or acts in situations where it has no obligation, it is performing an act it had no duty to undertake. This, by definition, is not a government obligation.

So what can you do as a homeowner to minimize your risk of an expensive sewer repair? It is recommended you:

  1. Maintain your lateral through proper cleaning and timely repairs versus putting it off until the problem escalates into a bigger, more costly repair or replacement job.
  2. Do not place improper items into the sewer, including objects, fats, oils, grease, and the like.
  3. Consult a licensed plumber regarding the installation of a backflow preventer and cleanout into your sewer lateral.

[1] Homeowners are responsible for maintaining their water services lines as well.

[2] In some cases, the municipality may own a portion of the lateral from the connection between the main and a cleanout. A property owner should consult with the municipality before making any repairs or replacements.

[3] N.Y. Const. Art. VIII Section 1.

[4] Schulz v. Warren County Bd. of Supervisors, 179 A.D.2d 118, 122.

[5] Town of Rye, 280 N.Y. at 474.

[6] The mere presence of a private benefit does not automatically render the action invalid if the primary beneficiary of the municipal spending or use of municipal resource is the public. An incidental private benefit resulting from a municipal action does not violate the gift and loan clause so long as the primary purpose is for the public good.

[7] See Note 2 for the exception where a municipality does have a responsibility to maintain a portion of the lateral.

KNOW BEFORE YOU OWE

The aftermath of the financial and housing crises brought about new regulatory reforms to help prevent a re-occurrence. The Dodd-Frank Wall Street Reform and Consumer Protection Act was passed in 2010 in direct response to the crisis and covered a variety of lending and financial reforms. It also created the Consumer Financial Protection Bureau (“CFPB”), a federal agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. Effective October 3, 2015, the CFPB issued a new rule that combines mortgage disclosures previously established by the Truth-in-Lending Act (“TILA”) and the Real Estate Settlement Procedures Act (“RESPA”) into a single rule known as the TILA-RESPA Disclosure Rule or “TRID”.

Q:        What does it mean for the consumer?

A:         Mortgages are complex and confusing. The TRID disclosure rule is designed to empower consumers with the information they need to make informed mortgage choices. In other words, it helps the borrower comparison shop for mortgages and avoids surprises at the closing table.

Q:        What transactions does TRID apply to?

A:         The new TRID rules applies to most closed-end consumer mortgage loans that are secured by a one to four unit dwelling attached to real property. It does not apply to home-equity lines of credit, reverse mortgage loans, mortgage loans secured by a mobile home or by a dwelling not attached to real property, such as land, or to creditors that write five (5) or fewer mortgages per year. A partial exemption is given to certain junior liens that are associated with housing assistance loans for low/moderate income consumers. Unlike many of the CFPB mortgage rules, TRID does not include an exception for small creditors.

Q:        What has changed?

A:         TRID combined the preliminary Truth in Lending (“TIL”) disclosure, the final TIL disclosure, the loan servicing disclosure, the Good Faith Estimate (“GFE”) and the HUD-1 Settlement Statement into just two (2) forms.

Q:        What are the two new forms?

A:         The two new forms are the Loan Estimate (“LE”) and the Closing Disclosure (“CD”).

Q:        What is the Loan Estimate?

A:         A lender is now required to provide a borrower the LE no later than the third business day after receiving the consumer’s application. The LE provides information about the interest rate, monthly payments, property tax and insurance escrows, closing costs, and the like. An application is deemed submitted when a consumer provides their (1) name; (2) monthly income; (3) social security number; (4) property address; (5) estimated value of property; and (6) requested loan amount. A lender may add additional requirements for a credit decision, but not for providing the LE. Notably, removed from the original definition of “application” was the all-encompassing seventh provision providing for “any other information deemed necessary by the loan originator.”

Q:        Can the consumer shop around after receiving the LE?

A:         Yes. A consumer may compare the terms on all the LE forms they received from different lenders to determine which loan is the best fit for them. Once a consumer has decided, they must notify the chosen lender that they intend to move forward with the loan.

Q:        What happens when the borrower notifies the lender to proceed with the loan?

A:         At that point the lender will begin the official loan approval process, obtain a real estate appraisal and order a property title examination (in New York title examination is initiated by the buyer’s attorney and the results are turned over to the lender’s attorney).

Q:        What is the Closing Disclosure form?

A:         The CD provides the borrower with all the final figures and amounts needed for closing, important contact information for the lender and service providers, the interest rate, monthly principal and interest, origination charges and a calculation of the cash needed to close. The lender must provide the CD at least three (3) days prior to closing.

Q:        Must the CD figures match those in the original LE?

A:         Generally, yes. The lender cannot change certain loan charges, such as the origination fee, the appraisal fee, the credit report fee, or fees for services the borrower could not shop for. Charges for escrows of real estate taxes and insurance, credits from seller and additional items discovered during a property inspection or walk-through can change as long as the borrower received an updated CD before closing. A lender must provide a new disclosure and start the service time over if there are any increases in the APR or changes in the loan product.

The rollout of the new TRID rules has been a bit bumpy. Lenders, real estate attorneys, and title companies have had to adjust to the new processes, deadlines and expectations, but hopefully the end result will be more transparency and clarity to what has become an increasingly complicated lending process.

Tax Benefits to Homeownership

For many people, owning a home is the fulfillment of the American dream. As a first-time homebuyer, buying gives you a feeling of starting a new chapter in life, perhaps a feeling of having “arrived.” But make no mistake, owning a home is a huge financial responsibility, probably the biggest you will ever have. Besides the mortgage payments, there is insurance, property taxes, maintenance and repair costs and so on.

The federal government knows just how big a deal owning a home is, so the tax code provides a number of benefits for people who own their own homes. Certain expenses are deductible. Let’s take a look at a few of those deductions.

Mortgage Interest

Your biggest tax break is reflected in the house payment you make each month. For most new homeowners, the bulk of that check goes toward interest, and all that interest is deductible (unless your loan is more than $1 million[1]).

Interest tax breaks do not end with your home’s first mortgage. If you pulled out extra cash through refinancing or took out a home equity loan or line of credit, you may be eligible for a deduction on that debt. Generally, equity debts of $100,000 or less are fully deductible.

Do you own multiple properties? Mortgage interest on a second home is also fully deductible. In fact, your additional property does not have to strictly be a home. It could be a boat or RV, as long as it has cooking, sleeping and bathroom facilities. You can even rent out your second property for part of the year and still take full advantage of the mortgage interest tax deduction as long as you also spend some time there. Be careful however. If you do not vacation at least fourteen (14) days at your second property, or more than 10% of the number of days that you do rent it out (whichever is longer), the IRS could consider the place a residential rental property and you therefore would not be eligible for interest deduction.

Points

Did you pay points to get a better home loan rate? They too offer a tax break. The only issue is exactly when you get to claim them. The IRS lets you deduct points in the year you paid them if, among other things, the loan is to purchase or build your main home, payment of points is an established business practice in your area and the points were within the usual range. Make sure your loan meets all the qualification requirements so that you can deduct points all at once.

A homeowner who pays points on a refinanced loan is also eligible for this tax break, but in most cases the points must be deducted over the life of the loan. So if you paid $2,000 in points to refinance your mortgage for 30 years, you can deduct $5.56 per monthly payment, or a total of $66.72 if you made 12 payments in one year on the new loan. The same rule applies to home equity loans or lines of credit. When the loan money is used for work on the house securing the loan, the points are deductible in the year the loan is taken out. But if you use the extra cash for something else, such as buying a car, the point deductions must be parceled out over the equity loan’s term.

Points paid on a loan secured by a second home or vacation residence, regardless of how the cash is used, must be amortized over the life of the loan.

Real Property Taxes

The other major deduction in connection with your home is real property taxes.

A big chunk of most monthly loan payments is the real property taxes, which go into an escrow account for payment once a year. This amount should be included on the annual statement you get from your lender, along with your loan interest information. These taxes will be an annual deduction as long as you own your home.

But if this is your first tax year in your house, dig out the settlement sheet you got at closing to find additional tax payment data. When the property was transferred from the seller to you, the year’s tax payments were divided so that each of you paid the taxes for that portion of the tax year during which you owned the home. Your share of these taxes is fully deductible.

 

 

Due to various tax benefits put in place by the government to encourage consumers to purchase homes, buying a home could be a very wise decision. Ultimately, taking advantage of these tax benefits can save you a great deal of money. Due to the various restrictions and conditions regarding these tax benefits, it is important to consult with one’s financial advisors or accountants to fully understand the benefits and opportunities of tax benefits to those who own homes.

[1] If you’re the proud owner of a multimillion-dollar mortgaged mansion, the IRS will limit your deductible interest.

What Is Title And Why Do You Need To Insure It?

When you purchase real estate, you are not literally handed a piece of land or home — you are given title. Title is the evidence that you are in lawful possession of that property.  How a home is titled can vary.  For example, title might be held as tenants by the entirety (each party owns an undivided 100% interest[1]), tenants in common (each party is assuming ownership of a certain stated percentage of the property as recited in the deed), as joint tenants with right of survivorship (the parties are deemed co-owners of the property whose rights in the real estate automatically transfer to one another at the time of death), or there might be a life estate in the home (where a party transfer title to another party, while retaining a right to use and live in the property until their death).  In addition, there are many uses for land and rights can be given or sold for such uses, i.e., other parties may own mineral, air, or utility rights on the property.  Other parties that may hold an interest include the following: lenders holding a mortgage, contractors who have filed a lien for unpaid work, judgment creditors, and governmental agencies who have filed liens against for unpaid taxes.

When you buy a home, or any property for that matter, you expect to enjoy certain benefits from ownership. For example, you expect to be able to occupy and use the property as you wish, to be free from debts or obligations not created or agreed to by you, and to be able to freely sell or pledge your property as security for a loan. A title search is a means of determining (by examining the public records) that the person who is selling the property actually has the right to sell it and that you are getting all the rights to the property (title) for which you are paying for. In addition, a title search will determine what limitations to ownership exist such as the scenarios described above.

So why is title insurance important if a title search can be conducted prior to closing and passing of title? That is a good question. Title insurance protects against claims from unknown defects at the time of closing. Unknown defects can include another person claiming an ownership interest, improperly recorded documents, fraud, forgery, and undiscovered liens, encroachments or easements that did not show up during the title search. The most common are:

  1. Errors in Public Records. Clerical or filing errors can affect the deed or survey of your property and cause undo financial strain in order to resolve them.
  1. Unknown Liens. Prior owners of your property may not have been meticulous bookkeepers or bill payers. And even though the former debt is not your own, banks or other financing companies can in some situations place liens on your property for unpaid debts even after you have closed on the sale. This is an especially worrisome issue with distressed properties.
  1. Illegal Deeds. While the chain of title to your property may appear clean (or clear), it is possible that a prior deed was made by an undocumented immigrant, a minor, a person of unsound mind, or one who is reported single but in actuality married. These instances may affect the enforceability of prior deeds, affecting prior (and possibly present) ownership.
  1. Missing Heirs. When a person dies, the ownership of his/her home may fall to heirs, or those named within their will. However, those heirs are sometimes missing or unknown at the time of death. Other times, family members may contest the will for their own property rights. These scenarios can happen long after you have purchased the property.
  1. Sometimes forged or fabricated documents that affect property ownership are filed within public records, obscuring the rightful ownership of the property. Once these forgeries come to light, your rights to your home may be in jeopardy.
  1. Undiscovered Encumbrances. At the time of purchase, you may not know that a third party holds a claim to all or part of your property, such as a former mortgage or lien, or non-financial claims, like restrictions or covenants limiting the use of your property.
  1. Unknown Easements. You may own your new home and its surrounding land, but an unknown easement may prohibit you from using it as you desire, or could permit government agencies, businesses, or other parties to access all or portions of your property. While usually a non-financial issue, easements can still affect your right to enjoy your property.
  1. Boundary/Survey Disputes. You may have seen a survey of your property prior to purchasing, however, other surveys may exist that show differing boundaries. Therefore, a neighbor or other party may be able to claim ownership to a portion of your property.
  1. Undiscovered Last Will and Testament. When a property owner dies with no apparent will or heir, the state may sell his or her assets, including the home. When you purchase such a home, you assume your rights as owner. However, even years later, the deceased owner’s will may come to light and your rights to the property may be seriously jeopardized.
  1. False Impersonation of Previous Owner. Common and similar names can make it possible to falsely “impersonate” a property owner. If you purchase a home that was once sold by a false owner, you can risk losing your legal claim to the property.

Purchasers and lenders need title insurance in order to be insured against any property loss or damage they might experience due to such possible title defects. If you are taking out a loan to buy your home, the lender will require you to purchase lender’s title insurance to cover its investment, but the lender’s policy will only cover the outstanding amount of the loan at the time a claim is made. You also want to make sure you have a policy that covers your interest, called an owner’s policy. When purchased together, the owner’s policy is a relatively inexpensive addition. Also unlike other types of insurance, title insurance premiums are a one-time fee and paid at closing and passing of title. Given the benefits and minimal cost, play it safe and protecting your investment with title insurance.

[1] This form of ownership is strictly limited to married couples in New York.

When You Need A Zoning Variance

Many homeowners dream of increasing the size of their home, whether it be erecting an addition or second story, installing a pool, building a detached garage or adding a deck, and the like. The challenge lies in turning those dreams into reality.

One reason is that homeowners must confront zoning limitations –rules in villages, towns and cities that regulate everything from the height of a house, to the number of structures permitted on a property, to a distance of a home or accessory structure from the property line. Zoning laws are a municipality’s guide to future development and to protect residents and property owners from undesirable development.

Dealing with zoning restrictions can be frustrating for homeowners. However, if your plans do not conform to the zoning regulations, there is something you can do. Note that something is not ignoring the rules or trying to get zoning approved after the fact.[1] What you can do however is seek a variance of the zoning rules.

A “variance” is permission granted by the municipality so that the property may be used in a manner not permitted by zoning. In New York, municipalities have what is referred to as the Zoning Board of Appeals. It is an administrative body established by the municipality’s legislative body to hear appeals from decisions or actions taken by the municipality’s code enforcement officer[2] or to render interpretations of zoning provisions. Only the Zoning Board of Appeals has the power to grant a variance of the zoning regulations, and since zoning is meant to implement the municipality’s development objectives and protect the health, safety and general welfare of the residents, there are strict rules governing when variances may be issued.

There are two types of variances – “use” and “area.” The rules for each are different, and as such will be discussed separately below.

Use Variance

A use variance grants permission to the owner to do what the use regulations prohibit – in other words, use the property in such a way that is not permitted by the zoning regulations. Examples include, permitting a commercial use in a residential district, or permitting a multiple dwelling in a district limited to single-family homes, or permitting an industrial use in a district limited to commercial uses.

In the case of a use variance, the power of the Zoning Board of Appeals must be exercised very carefully to avoid conflict with the overall zoning scheme for the community. Therefore the showing required for entitlement to a use variance is very difficult. If requesting a use variance the applicant must prove “unnecessary hardship.” To prove this, State law[3] requires the applicant to show all of the following:

  • that the property is incapable of earning a reasonable return on initial investment if used for any of the allowed uses in the zoning district (actual “dollars and cents” proof must be submitted);
  • that the property is being affected by unique, or at least highly uncommon circumstances;
  • that the variance, if granted, will not alter the essential character of the neighborhood; and
  • that the hardship is not self-created.

If any one or more of the above factors is not proven, State law requires that the Zoning Board of Appeals deny the variance.

Area Variance

An area variance is permission to build or erect in an otherwise restricted portion of the property (such as in the required front, side or rear yard setback areas, or above the required building height, or in excess of the lot coverage regulations). In the case of an area variance, State law requires the applicant to show that the benefit the applicant stands to receive from the variance will outweigh any burden to the health, safety and welfare that may be suffered by the community. State law requires the Zoning Board of Appeals to take the following factors into consideration in making its determination:

  • whether an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created by the grant of the area variance;
  • whether the benefit sought by the applicant can be achieved by some other method which will be feasible for the applicant to pursue but would not require a variance;
  • whether the requested area variance is substantial;
  • whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
  • whether an alleged difficulty is self-created.

Unlike the use variance test, the applicant does not have to satisfy every one of the above questions. Rather, the Zoning Board of Appeals must merely take each one of the factors into account. The Zoning Board of Appeals may also decide that a lesser variance than the one requested would be appropriate, or may decide that there are alternatives available to the applicant which would not require a variance.

Conditions Imposed on Variance

If a Zoning Board of Appeals decides to grant a use or area variance, State law requires the board to grant the minimum variance necessary to provide relief, while at the same time taking care to protect the character of the neighborhood and the health, safety and welfare of the community. For those same reasons, the board may also impose reasonable conditions on the grant of any variance. Such conditions must be directly related to and incidental to the proposed use of the property however.

Referrals to a Planning Agency

In some instances, an application for a variance must be referred elsewhere for recommendation before making a final decision. State law requires that in any city, town or village located in a county which has a county planning agency, or within the jurisdiction of a metropolitan or regional planning council, any board charged with taking certain zoning or planning actions must before making such action refer them to that county, metropolitan or regional planning agency or council.

Environmental Quality Review

In addition to the specific variance criteria outlined above, the Zoning Board of Appeals must also adhere to the State Environmental Quality Review Act, better known as “SEQRA”. SEQRA is a process that requires systematic consideration of environmental factors early in the planning states of actions that are directly undertaken, funded or approved by local, regional and state agencies.

Conclusion

The above rules and standards have been set forth in law and by the courts of New York State, and therefore a Zoning Board of Appeals may not deviate from them. If the rules are not followed, a municipality exposes itself to litigation.

Applicants and their representatives should understand the appropriate legal standards in deciding whether an appeal would be appropriate, and if an appeal is taken, the applicant should present clear, definite facts showing that the standards have been met.

 

[1] A homeowner may be forced to tear down any structure erected illegally regardless of the expense.

[2] An exception occurs where an applicant has already submitted an application for subdivision, site plan, or special use permit approval which requires an area variance in connection with that approval. In those instances, no decision of the code enforcement officer is necessary.

[3] Found under (NY) General City Law, Town Law, and Village Law.

A GUIDE TO GRIEVING YOUR REAL PROPERTY TAX ASSESSMENT IN NY

Property taxes are a primary source of revenue for many local governments. They are also a significant expense for homeowners. Even after you have paid off your mortgage, property taxes remain. That is why it is important to understand your property tax bill. If you know how it is calculated, you will have an idea of what your bill should be each year, allowing you to budget accordingly, avoid surprises and spot any costly errors on your bill.

So how are property taxes calculated?

Your property tax bill is based on the assessed value of your property, any exemptions you qualify for and a property tax rate. People sometimes think that their municipality’s assessor sets property taxes. This is not true. The assessor’s role is only to determine what the market value is for your property using a market, cost, or income approach, depending on the type of property. Once the assessor has determined your market value, the assessor then calculates your assessed value, which is a simple mathematical calculation that multiplies the market value by a predetermined Uniform Percentage of Value (“UPV”) set by the State of New York. The UPV provides a standardized assessment calculation to ensure that every property receives an equitable assessment. So for example, if the UPV is 40%, and your market value is $500,000, your assessed value would be $200,000 ($500,000 multiplied by 40%).

What if you disagree with your assessment?

Once the assessor has determined the assessed value of all the properties in a municipality, he or she will publish what is referred to as the “tentative assessment roll,” which is a comprehensive listing of all properties, their determined market value, and their assessed value. For most municipalities in New York, the tentative assessment roll is published in the first week of May. If you disagree with your assessment you must file a complaint seeking an Administrative Review of your assessment by the deadline established by your municipality. The deadline is usually a few weeks after the tentative assessment roll is published – typically the fourth Tuesday of May and it is referred to as “Grievance Day.” This process is referred to as “grieving” your assessment. There is no cost to grieve an assessment and it does not require you to hire an attorney.

How do you file a complaint seeking Administrative Review of your assessment?

Outside of New York City and Nassau County, a grievant must use Form RP-524 entitled “Complaint on Real Property Assessment. You can find the form here https://www.tax.ny.gov/pdf/current_forms/orpts/rp524_fill_in.pdf. File the completed form and any supporting documents justifying your request with the assessor or the board of assessment review with your municipality. Please note if your property is located within a village that assesses property, you will have two assessments – one for the village and one for the town. If you wish to grieve both assessments you will need to complete and submit separate RP-524 forms to each municipality. Be sure to check with your municipality as to submission deadlines and the date of Grievance Day. In most municipalities the deadline is Grievance Day. If you do not file the RP-524 form by the deadline, you will lose the opportunity for an Administrative Review and a Judicial Review.

Who determines whether or not the relief requested should be granted?

Each municipality has a board of assessment review (“BAR”). The BAR is a quasi-judicial body charged with the judicial responsibility to hear grievances against the current assessment role, obtain the facts, and apply the law. The BAR consists of not less than three (3) and no more than five (5) members appointed by the municipality’s legislative body. Members must possess knowledge of property values in the municipality and initial appointees and reappointees must attend training sessions taught by a county director of real property tax services. Neither the assessor, nor any members of his or her staff, may be appointed to the BAR.

Who can grieve an assessment?

Any person who pays property taxes can grieve an assessment. This includes not only property owners, but also purchasers under contract to purchase the subject property, and tenants who are required to pay taxes pursuant to a lease or written agreement.

What if you do not reside in the municipality where the property is situate?

A non-resident owner can request a date after Grievance Day for the grievance hearing but must submit the RP-524 form on or before the regularly scheduled Grievance Day. Requests must be made to the assessor or BAR on or before Grievance Day and the BAR must set a date no later than twenty-one (21) days after Grievance Day for the hearing.

Can you grieve more than one year?

No. Only the assessment on the current tentative assessment roll can be grieved – you cannot grieve assessments from prior years.

Can the assessor reduce an assessment prior to Grievance Day?

Yes. On or prior to Grievance Day, a complainant and the assessor may stipulate to a reduced assessment of the value of the subject property. To do so, Part Six of the RP-524 form must be completed and signed. Note however if you enter into a stipulation, a complainant may not ask the BAR for a further reduction in your assessment. Further more, if the agreed upon reduced assessment appears on the final assessment roll, a complainant will not be permitted to seek an even lower assessment through the Judicial Review process (see below for explanation on Judicial Review).

Do you have to appear at the BAR hearing on Grievance Day?

No, but a complainant does have the right to attend the hearing and present statements and/or documentation in support of their grievance. A complainant may appear personally, with or without an attorney or other representative. If a complainant chooses to be represented by an attorney or other representative, they must authorize that person to appear on their behalf by signing Part Four of the RP-524 form. Note however the BAR may require a complainant or their representative to appear personally, or to submit additional evidence. If a complainant refuses the BAR’s request, the BAR can deny the complainant’s request for a reduction in assessment based on such refusal.

When do you find out whether or not your request has been granted?

A complainant will receive a written notice of the BAR’s determination (except where the BAR ratifies a stipulated assessment). The notice must contain a statement of the reasons for the BAR’s determination.

What if you do not receive the requested relief?

If a complainant is dissatisfied with the decision of the BAR, they may seek Judicial Review of the assessment via Small Claims Assessment Review (“SCAR”) in Small Claims Court or a Tax Certiorari proceeding. SCAR is only available to: property owners who live in their one, two or three family dwellings that are used exclusively for residential purposes or owners of vacant land that is not of sufficient size to contain a one, two or three family dwelling. For information on SCAR see the New York State Unified Court System website at https://www.nycourts.gov/litigants/scar/. Tax Certiorari proceedings are for all other scenarios and are commenced in NY Supreme Court pursuant to Article 7 of the Real Property Tax Law. It is highly recommended a complainant hire an attorney for a Tax Certiorari proceeding.

What is the deadline for Judicial Review of the BAR’s determination?

SCAR and Tax Certiorari proceedings must be initiated within thirty (30) days of the filing of the final assessment roll or notice of such filing, whichever is later.

In summary, the property tax grievance is not as complicated as most property owners believe. It only requires a little bit of research, completing the RP-524 form, and submitting same before the deadline.

NOTHING IS MORE EXPENSIVE THAN HIRING A CHEAP ATTORNEY

When it comes to buying and selling real estate, there are certain situations where it helps to have a qualified legal professional on your side. If you are looking to get into real estate investing, attempting to purchase a short sale or foreclosure, or having unexpected complications with a simple transaction, it may be time to hire a real estate attorney. The question is why you should not go out and hire the cheapest attorney you can find.

Legal representation of exceptional quality should be the most important criterion when searching for an attorney and it will lead to the most favorable outcome possible. Any New York licensed attorney, may engage in real estate transactions within the state with minimal or no additional training. However, real estate law is known for its complexity. Attorneys who are unfamiliar with the complexities of real estate transactions may encounter problems when overseeing a real estate transfer. So avoid hiring “the dabbler” to help you buy or sell real estate. “The dabbler” is the attorney whose practice is 1% real estate and 99% everything else. A real estate attorney is a lawyer whose primary practice is real estate. The attorney may work in other areas of law, but the main focus is on residential and/or commercial real estate transactions.

Once you have narrowed down your search to real estate attorneys, you should consider experience. Generally, the more complicated the transaction is, the more experienced you want your attorney to be. Every real estate transaction is different and it is to your advantage to find an attorney who is experienced in handling situations similar to yours. Choosing an attorney who is familiar with the type of transaction involved works in your favor, since they already understand the potential problems that can arise and how to head them off. Just keep in mind that you may end up paying more for the services of an attorney who has been practicing for ten or twenty years than you would for one who is two or three years out of law school, which leads to the point of this article – price is an important consideration when it comes to choosing a real estate attorney but it should not be the only one.

You have to ask yourself what are you getting for your money? In addition, to experience you should consider how accessible your real estate attorney will be throughout the process. If you are considering hiring a larger firm to help you purchase or sell your house, it is a good idea to know whether anyone else will be working on your transaction besides your attorney. In some instances, part of the workload may be handed over to paralegals or junior attorneys so you need to be sure that you are comfortable with who has access to your information and how accessible your attorney will be to answer your questions and address your concerns. Communication is key to a good working relationship with your attorney and you need to feel confident that they will be able to address your concerns if and when they arise.

At Primo & Hills Law Firm, we recognize we are not the cheapest attorneys that you could hire.  We do not try to be, we do not want to be and frankly picking an attorney based on how little they charge is a terrible way to choose a lawyer.  At Primo & Hills Law Firm, we strive to provide the highest quality legal representation as well as the finest customer service possible.  There is no way that we could possibly do that on the cheap. You would never consider choosing a surgeon based on who is cheapest, so why would you consider choosing your lawyer exclusively on price? Consult with us, check out our website, and consider our experience level with your type of transaction.  While cost is certainly a component of the decision, effective learned counsel should be your primary goal.

HOMEOWNER’S INSURANCE 101 – WHAT YOU NEED TO KNOW

 

Buying a home usually takes several years of savings and hard work, but a fire or inclement weather can destroy it in a matter of minutes. Homeowner’s insurance is designed to protect your investment in a residence, and unless you purchase a home for cash, you will have a mortgage lender who will mandate at least hazard insurance coverage equal to their financial interest.

While your lender will mandate hazard insurance coverage to protect their interest, you should consider protecting your own equity. If you buy a home with a low down payment loan, your equity will be small. However, if your loan-to-value ratio (your mortgage balance divided by the home’s purchase price) is 80% or less, you should protect your 20% (or more) in equity.

I have sat down with my colleague Michael J. Crowley, V.P. of Crowley Insurance Agency, to answer your basic questions regarding homeowner’s insurance coverage.

 

Courtney:      Mike, I am asked frequently by clients what the difference is between hazard insurance (required by lenders) and homeowner’s insurance. What is the difference and why is homeowner’s insurance important?

Mike:              Yes, Courtney. What most people do not realize is that hazard insurance is not synonymous with homeowner’s insurance. Hazard insurance only covers physical damage, whereas homeowner’s insurance typically includes liability protection and hazard insurance. Your lender only cares about protecting against hazards,[1] but along with protecting your equity you should cover your personal property, including furniture, appliances and clothing, and most importantly you should have coverage for personal liability for injuries to others or property damage you or members of your family cause to others. If the bank takes out the insurance policy for you, they are only going to take a hazard policy.

Courtney:      Can you elaborate for our readers the different types of coverage available under a standard homeowner’s policy?

Mike:              Homeowner’s insurance is broken into two main parts: one – property coverage, and two – liability/medical coverage. Property coverage provides coverage for the dwelling itself, any detached structures, the contents on premises and even some contents off premise. Whereas, liability and medical coverage provides coverage in the event you or your family cause bodily injury or property damage or if someone gets injured on your property.

Courtney:      Okay, now that we know what types of coverages are available, can you provide our readers with examples of the various types of events/occurrences that they would be protected against under such a policy?

Mike:              Under the Standard Homeowner’s Insurance Policy also known as HO-3 or Special Form you will see the following losses covered:[2] fire, lightening, wind, hail, explosions, glass breakage, smoke, theft, weight of ice and snow, vehicle damage, overflow of water from appliances, freezing, electrical damage, heating system loss, ice back up, spilled chemicals, overhead appliances, dropped objects, accidental damage, damage by aircraft, and vandalism.

Courtney:      Mike, what are some factors that affect homeowner’s insurance premium rates?

Mike:              Factors that affect premium rates are as follows:

  • Credit– Insurance Carriers will run Insurance Credit Scores. These are slightly different than a traditional credit report but scoring is done very similar. The one difference is the insurance score doesn’t affect your hard credit score rating.
  • Location – Some insurance companies use data to determine which neighborhoods have more claims than others, and they increase their rates accordingly. They may also look at the distance of your home from the nearest fire station and fire hydrants.
  • Home Age, Features and Materials – The age of your home, property features and even building materials can affect how much coverage you need to carry which affects your premiums. Certain features of your home (regardless of its age) may your homeowner’s insurance. These include swimming pools, trampolines, and wood stoves.
  • Whether House Has Been Updated – Many older homes tend to develop problems with electrical wiring, plumbing, and foundation, more frequently than newer/updated homes. Some renovations to ward against common problems may keep your insurance down.
  • Claims – For current homeowner insurance policies, the frequency of your claim record will translate into higher rates. Carefully evaluate every claim before submitting it for reimbursement. Ask yourself whether the claim is worth risking a hike in your premium next year. Preventive maintenance and keeping up with small problems, may prevent larger and more costly ones in the future.

Courtney:      Mike, I think one of the most confusing things for homeowners to understand is the difference between Replacement Cost versus Appraised Value or Purchase Price. Mortgage lenders require my clients to carry full “replacement cost.” What does this mean, and what do our readers need to know?

Mike:              Replacement cost is the amount of money it takes to replace a structure with a similar type of construction, an expense which can vary from year to year. When real estate markets are appreciating, it can often cost more to buy a resale or used home than to build a new home. But when markets decline, it is often cheaper to buy an existing home than to build new. We use a specialty tool to calculate the replacement cost of a property. We use factors like square footage, year built, style of the house, etc. to calculate what it would cost to rebuild the property the same way at present day construction prices. As such replacement cost can be more than your purchase price or appraised value. If it costs more to build a new home than the initial expense of your home, then you will want to make sure the replacement cost coverage of your policy is higher than the price you paid. If prices are appreciating in your neighborhood, you may also want to increase your basic insurance coverage but the replacement cost coverage might go down.

Courtney:      Co-insurance or replacement cost penalty are also common insurance terms that are very confusing to my real estate clients. Can you break it down for us in layman’s terms?

Mike:              Built into insurance contracts is a clause known as coinsurance or replacement cost penalty. Think of property coinsurance as a warranty or condition of the policy.  The coinsurance states what percentage the insurance you are carrying bears to the value of the property you are insuring.  The value must be either actual cash value (current market value) or replacement cost (cost to rebuild) depending on the policy you have selected. At the time of a loss, the coinsurance clause comes out of the dusty regions of the policy to be activated. If the policy has 80% coinsurance, the insured must be carrying an insured amount that is NO LESS than 80% of the value of the property at the time of a loss.  If the amount carried is at least 80% or greater of the value of the property, the insured is paid 100% of his claim (not 80% as so many buyers think) and everyone is happy. If the amount of insurance that is actually being carried is less than the 80% shown above, the coinsurance clause fires up.  In property insurance language, “coinsurance” means that you are accepting a role as a co-insurer in the event of a loss and are willing to take less than the full claim amount.

Courtney:      Can you give our readers any tips on choosing the right insurance agent to avoid insurance coverage gaps?

Mike:              Insurance agents play an important role in the insurance marketplace. Insurance policies do not provide “peace of mind” if they have gaps in coverage that leave policyholders without benefits following a loss. Accordingly, insurance agents who promise to work and advise insurance customers of their options should be selected over those that promise to obtain “cheap insurance.” These agents recognize their obligations to customers extend far beyond being mere order takers and providing the cheapest insurance premium. Instead, they are the agents who procure insurance policies which provide the “peace of mind” the insurance industry promises and advertises to those who purchase its products.

Courtney:      Thank you, Mike!

 

 

[1] Hazard insurance typically does not cover earthquakes, floods and certain other catastrophic events. Your lender may require you to buy the additional — and often expensive –coverage if you live in an area susceptible to such hazards

[2] All Losses need to be sudden and unexpected.

THE TAXABILITY OF SOLAR ENERGY SYSTEMS

A solar energy system is “real property” once it has been permanently affixed to land or a structure (See Real Property Tax Law §102(12)(b); see also, Metromedia, Inc. v. Tax Commission of the City of New York, 60 N.Y.2d 85, 468 N.Y.S.2d 457 (1983); 8 Op. Counsel SBEA No. 3). As such, it is taxable unless it qualifies for an exemption (Real Property Tax Law §300).

There is an exemption statute that applies specifically to solar energy systems: Section 487 of the Real Property Tax Law (“RPTL”). Section 487, which also covers wind power energy systems and farm waste energy systems, generally provides a 15-year exemption from real property taxation for the increase in value resulting from the installation of a qualifying system. A number of questions have recently arisen concerning the application of this exemption statute.

 

  1. Must every municipality offer the RPTL §487 exemption? Each municipality may decide for itself whether to offer the exemption. Unlike most other local option exemptions, however this exemption applies within a municipality unless the municipality has taken action to disallow it.
  1. How does the option feature work? The location option that is attached to the RPTL §487 exemption is structured as an “opt-out”, not an “opt-in.” That means that the exemption is automatically in effect within a municipality unless it has adopted a local law, ordinance or resolution providing that the exemption shall not be available therein. In municipalities that have taken no action one way or the other, the exemption is in effect. If a local law, ordinance or resolution opting out of the exemption is adopted, a copy must be filed with the New York State Department of Taxation and Finance and the New York State Energy Research and Development Authority (“NYSERDA”).
  1. May an opt-out be made retroactive? If a municipality opts out, it is effectively disallowing the exemption to solar energy systems where construction had not begun by the effective date of the applicable local law, ordinance or resolution (or by January 1, 1991, if later). See RPTL §487(8)(a). Where a system’s construction had begun by that date, it is not impacted by the opt-out and is entitled to the exemption if otherwise qualified (though it may be obligated to make PILOTs under certain circumstances; See Nos. 6-10 herein. Note that for the purposes of the RPTL §487 exemption, the construction of a solar energy system is deemed to have begun upon the execution of a contract or interconnection agreement with a utility or, if applicable, upon the payment of a deposit thereunder. The owner or developer must give written notice to the appropriate municipalities when such a contract or agreement is executed. See RPTL §487(8)(b).
  1. If a municipality has opted out, may it restore the exemption later? If a municipality that had opted out wishes to begin offering the exemption later, it may do so by repealing the local law, ordinance or resolution that opted out. This is not stated explicitly in the law, but such authority is believed to be implicit in statutes of this nature, absent language to the contrary. A copy of any local law, ordinance or resolution restore the exemption should be filed with both the Department of Taxation and Finance and NYSERDA.
  1. May a municipality opt out of the exemption for commercial property while leaving it in place for residential property? If a municipality does opt out, it must do so for all properties. It cannot allow the exemption for one type of property while disallowing it for another because RPTL §487(8) states that once a municipality has opted out, “no exemption under this section shall be applicable within its jurisdiction.” If a municipality does not opt out, however, the law may allow it to treat commercial and residential properties differently when deciding what their PILOT obligations should be. See No. 8 herein.
  1. If a municipality leaves the exemption in place and requires owners to pay PILOTs, how much should those payments be? That is largely a local decision, except that the statute sets limits on how large these PILOTs may be, and on how long they may last. Specifically, it provides that the PILOTs may not exceed the taxes that would have been payable if the property were not exempt under RPTL §487. It also provides that the period over which the PILOTs are to be paid may not exceed 15 years. See RPTL §487(9)(a). In effect, then, if a municipality leaves the exemption in place and imposes the maximum allowable PILOT obligation, the owner will be making payments to the municipality in the same amount as if the property were fully taxable. The primary difference is that those payments will have the legal status of PILOTs rather than property taxes.
  1. What is the maximum PILOT for a solar farm built on vacant land? The limit on the PILOTs in such an instance is the amount of taxes that would have been levied on the parcel as it now exists – that is, the land with the panels – if the municipality had opted out of the exemption.
  1. May different PILOT requirements be imposed upon commercial and residential systems? While it is clear that a municipality may not opt out of the RPTL §487 exemption for one type of property while leaving the exemption in place for another type (See 5 herein), it is less clear whether it may impose different PILOT requirements on different property types. RPTL §487(9)(a) states simply that the municipality may require “the owner of a property” that qualifies for the exemption “to enter into a contract” to make PILOTs. This wording, which arguably frames the PILOT question as an individualized determination rather than a collective one, provides no guidance as to how owners should be treated relative to one another. While principles of equal protection would clearly preclude a municipality from drawing arbitrary distinctions between similarly-situated owners when setting their PILOT requirements, it is believed the law may reasonably be read as leaving open the possibility of treating owners of different types of property differently, as long as there is a rational basis for doing so. Accordingly, if differential treatment is desired, we suggest that the issue be directed to the municipal attorney, who would have to be satisfied that any such differentiation could successfully be defended in the event of litigation.
  1. May a municipality enter into a PILOT agreement that requires the owner of a solar energy system to provide the municipality with energy at a discounted rate, or that bases the PILOT payments upon the amount of energy produced by the system or the value of the system? Nothing in RPTL §487 prohibits a municipality from structuring a PILOT as described above. However, as noted above (See 6-7), RPTL §487(9)(a) states that PILOT agreements may require annual payments in an amount not to exceed the amounts that would have been payable if not for the exemption. Therefore, no matter how the arrangement is structured, the PILOT obligation imposed upon the owner must comply with this limitation.
  1. Our municipality received a notice stating that the sender of the notice intends to construction a solar energy system within our municipality. What is the significance of this notice? In some cases, a municipality that has not opted out of the RPTL §487 exemption may need to take action to preserve its rights to collect PILOTs on exempt property. The law now provides that the owner or developer of a solar energy system may notify a municipality in writing that it intends to construction such a system. If an owner or developer does so, and the municipality wishes to collect PILOTs on that system, then within sixty (60) days of receiving the notice of intent, the municipality must notify that owner or developer that it intends to require it to enter into a PILOT contract. See RPTL §487(9)(a). Note that the law does not require an owner or developer to use a specific form or include specific language when giving a municipality notice of its intent to construct a solar energy system.
  1. May solar panels receive the RPTL §487 exemption if they are not owned by the owner of the underlying land or building? There is no ownership requirement in RPTL §487, so solar panels that otherwise qualify are entitled to the RPTL §487 exemption even if they are owned by a third party.
  1. Solar panels will be installed on property that is owned either by a municipality or by a public or private college. The panels themselves will be owned by a private entity, which will sell the electricity to the municipality or college at the discounted rate. Due the 15-year limit on the RPTL §487, it has been suggested that the panels may be granted a permanent exemption under the exemption statutes that apply to municipal corporations or not-for-profit educational organizations, rather than under RPTL §487. Is this permissible? The real property tax exemptions that apply to municipalities and not-for-profit education organizations are embodied in RPTL §§406 and 420-a, respectively. Each statute provides that in order to qualify for the exemption real property must be both (1) “owned by” the eligible owner (i.e., the municipality or educational organization) and (2) used for qualifying purposes. Since these panels will be used to general low-cost electricity for the municipality or college, it may reasonably be argued that these panels will be used for qualify purposes. However, the use requirement is just one of the requirements that must be satisfied to qualify for exemption under RPTL §§406 and 420-a. In each case, the property must also be owned by the exempt entity in order to qualify for exemption. Where the panels are owned by a third party, they may not properly be granted a RPTL §§406 and 420-a exemption.   Note that this analysis does not require the removal of the RPTL §§406 and 420-a exemption from the land or buildings to which the panels will be attached.
  2. There is a separate exemption statute for “residential conservation improvements,” namely, RPTL §487-a. Do solar energy systems qualify for this exemption? RPTL §487-a states in its entirety: “Insulation and other energy conservation measures hereafter added to one, two, three or four family homes, which qualify for (a) financing under a home conservation plan pursuant to Article VII-A of the Public Service Law, or (b) any conservation related state or federal tax credit or deduction heretofore or hereafter enacted, shall be exempt from real property taxation and special ad valorem levies to the extent of any increase in value of such homes by reason of such addition.” It is undeniable that solar systems offer many benefits, but energy “conservation” is not among them. A conservation measure leads to the use of less energy. Examples include installing better insulation or upgraded thermostats, replacing leaky windows or inefficient furnaces, etc. Those are the types of improvements that RPTL §487-a was enacted to exempt, as the legislative history indicates (See, e.g., L. 1977, c. 858, §1, “Legislative Findings”). Solar energy systems are in a different category. They lead to the use of clean, renewable energy in place of energy generated from fossil fuels, but they do not necessarily lead to the use of less energy overall. In fact, solar systems may actually lead to the use of more energy, since beyond the fixed cost of installation, the electricity they produce is essentially free. Moreover, it is a broadly-accepted principal of statutory construction that specific legislative language takes precedence over general language. While RPTL §487-a generally applies to “insulation and energy conservation measures,” RPTL §487 specifically applies to solar energy systems (as well as wind and farm waste energy system). In fact, both statutes were enacted in the same year, just a few weeks apart (L. 1977, c. 322 and c. 858). It only stands to reason that RPTL §487-a must have been intended to apply to improvements other than solar energy systems.

 

*Disclaimer. The content of this article was published in the Association of Towns of the State of New York publication entitled “Talk of the Towns & Topics,” vol. 30, September/October, and was not authored by Courtney M. Hills, Esq.

 

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