In these winter months of sledding, snowmobiling and frolicking in the snow, you might wonder if you could be held liable if someone is hurt while having some fun on your property. New York has a law for that! Section 9-103 of our state’s General Obligations Law, commonly known as the recreational use statute, recognizes the value and importance to New Yorkers of pursuing recreational activities, and encourages landowners to open their land for recreational use without fear of liability in most circumstances.

So if you open your property for certain outdoor activities throughout the year, whether or not your land is posted, you are immune from the usual duty to keep your property safe and may well be protected from liability. Protected recreational uses include hunting, fishing, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, spelunking, horseback riding, bicycle riding, hand gliding, dog training, motorized vehicle operation for recreational purposes, snowmobiling, cutting or gathering of wood for non-commercial purposes and even organized gleaning. If a person is engaged in one of those activities on land which is physically suitable for that purpose, you have no duty to keep the premises safe or to warn of hazardous conditions or activities, as long as you don’t willfully or maliciously fail to guard or warn against a dangerous condition on the property and you haven’t charged a fee for the privilege of coming on your property to engage in that activity.

What does this mean to you? If you allow the neighborhood kids to sled down your open hill and one is hit in the eye by a sharp stick in the snow, or allow snowmobilers to cross your property and one is hurt when he drives into a gate near the trail, you very likely cannot be held liable. So let those recreational “wonderers and wanderers,” spelunkers and gleaners go ahead and have some fun – you’re protected!

Tags: general obligations law, property liability, recreational use statute

With the New Year on its way, and in addition to the “fiscal cliff” issues, there are a few changes that will or may arise from the Legislature that affect individual homeowners and potential buyers of real estate, and the real estate market as a whole.

The first such change will be the possible elimination of real estate related income tax deductions. If such a bill passes, the individual tax payer would no longer be able to benefit from taking deductions for the mortgage interest they pay throughout the year on their mortgages and real estate taxes that are paid on such real estate, or such deductions would be limited or modified in some way. Experts are debating as to whether or not this elimination would cause potential homeowners to decide against owning and continue renting for their housing needs.

Another change that may be on the horizon is the possible failure of Congress to extend the Debt Relief Act which will expire on December 31, 2012 if not renewed. The Act temporarily amended the tax code to allow mortgage debt that is cancelled through a loan modification, foreclosure sale or short sale to escape tax as ordinary income. Depending on the amount of mortgage debt forgiven, a homeowner could be subject to substantial tax if that amount is considered ordinary income by the IRS.

On a better note, the Federal Housing Administration (FHA) has already eased its standards in certifying condominiums and their homeowner’s associations in order to allow more access to FHA mortgages. The FHA, before certifying a condominium, looks at the viability of the association, which usually includes a review of the association’s budget, reserves, assessment default rates and ratio of owner-occupied units to leased units. The FHA has significantly lowered the factors they require for certification. Whether this will significantly increase the numbers of buyers for said condominiums (traditionally purchased by first time home buyers who are in need of FHA’s assistance in the loan market) or not is the question.

Given the above, it seems like there will most likely be some changes in the coming year that will affect the real estate market. The extent of said changes is still up in the air.

Tags: debt relief act, federal housing administration, fha, real estate income tax deduction

Many commercial landlords often find themselves litigating the terms of a lease agreement to obtain a recovery against a tenant that has defaulted. To increase the likelihood of succeeding against a tenant that has defaulted, the following three provisions should be included in the lease agreement:

1. Acceleration Clauses – these clauses are very important especially for long-term lease agreements. Acceleration clauses allow a landlord, upon default of the tenant, to accelerate and immediately demand payment in full of the tenant’s rental obligation under the lease for the remaining term of the lease following the default. Without an acceleration clause, a cause of action to recover unpaid rent will have to be brought periodically as payments would become due or at the end of the lease term.
2. Personal Guarantees – in connection with renting a commercial space to a corporation, partnership or limited liability company, a unconditional guarantee by the principal of the tenant-entity is a must have. A guarantee by the principal allows the landlord to recover rent due from the owner of the company generally without having to proceed against the company first. If your tenant is a business entity with no assets, and a default occurs, without a personal guaranty, any judgment obtained for rent, costs, etc. will not be recoverable. The personal guarantee provides additional security for payment to the landlord.
3. Attorneys’ Fees – to ensure that you can recover the attorneys’ fees you incur in connection with litigation or curing a default by a tenant, the lease agreement must specifically provide the right to recover attorneys’ fees and costs. To the extent that the tenant will agree to a clause that allows a landlord to recover fees and costs, without a right of reciprocal recovery to the tenant, this is a more favorable position for the landlord. Otherwise, the clause should provide for the right of the prevailing party to recover attorneys’ fees and costs. Without this clause, New York State Courts disfavor awarding them to any party.

We have several attorneys on staff that can review your commercial lease agreement to provide you with suggestions on improving and/or updating the provisions contained therein.

Tags: acceleration clause, attorney fees, commercial lease, commercial lease agreement, lease agreement, personal guarantee

There has been a dramatic increase recently in the number of septic system problems in home sales in Western New York. I believe this is occurring due to the aging of the systems, as well as changes over the years in technology and building department requirements. The houses too, have changed over the years and, for example, a homeowner may have converted a basement or den into a bedroom, or installed a shower in the basement or elsewhere. This may not have been done in connection with a building permit and an inspection from the Town. The septic system may not have been enlarged to accommodate these changes. (more…)

Reclaiming Leased Property—The Eviction Process

Before a landlord can reclaim possession of leased property, he or she must terminate the tenancy. First, there must be a notice of default given, depending on the nature of the default. For example, the law requires three days notice for unpaid rent or 30 days notice to terminate a tenancy in the event of a month-to-month tenancy. In no event should a lease contain time frames greater than those that are required by the law.

Typically notice of default must be provided in writing and in accordance with the terms of the lease or if there is no lease, in accordance with the Real Property Actions and Proceedings law.

Every landlord is cautioned against forced entry or entry without a judgment of possession from a court. Forced entry is never advisable regardless of the grounds of termination and is considered a trespass and breach of quiet enjoyment. If a tenant is ejected by forceful or unlawful means a landlord can subject him or herself to damages under the Real Property Actions and Proceedings Law. (more…)

Tags: eviction, foreclosure, Real Property Actions and Proceedings Law

Minimizing Exposure in the Landlord/Tenant Relationship

While there is no full-proof way of eliminating exposure to problems or difficulties with tenants, there are a few that one should keep in mind:

• A detailed rental application with request for references
• A credit check – authorizations typically needed and should be obtained in any event
• Social security numbers
• Adequate security deposits

Security Deposits

With respect to a security deposits, they are generally intended only to protect against damages and unpaid rent, (more…)

Tags: Landlord, landlord/tenant, security deposit, Tenant

The importance of a lease

There is nothing that can provide more benefit to the landlord/tenant relationship than a written lease. In the residential setting, a plain language lease helps greatly in outlining the rights and responsibilities of either party. The law requires that leases be in clear language (which is different than rules regarding commercial leases). Many people use pre-printed forms or forms found on the internet, but it is important, especially for the landlord, to have those forms reviewed by an attorney make sure that the following issues are addressed thoroughly: (more…)

Tags: landlord/tenant, lease, residential lease