How Should a Retail Store Enter a Lease with a New York Condominium?

In recent years, cities like New York have been at the center of a growing trend where stores enter leases with residential and office condominiums to operate on the ground floor of their buildings and cater to both tenants and the public alike. However, when entering these agreements, careful attention must be paid to the lease – standard forms and shopping center leases will not work, so the broker’s term sheet and the attorney’s draft least should address several basic issues and recognize the differences a retailer faces when operating in a condominium building as opposed to a traditional shopping center storefront. Working with an experienced New York real estate attorney is essential to ensure this arrangement runs smoothly.

Casualty Repair

The condominium board controls the insurance proceeds as well as any decision to repair the building, so the typical casualty clause stating the landlord will make repairs is insufficient. The casualty clause should include language specifying the landlord will ask the board to promptly repair any casualty. A tenant may even go so far as to ask the landlord’s representative on the board to vote for any requested repairs.

Lease Subordinate to Condominium Documents

The lease needs to expressly assert it is subordinate to and subject to the condominium declaration. It should also require the tenant to abide by existing rules related to garbage disposal and other store operations. 

Enforcing Condo Board Obligations

The lease needs to clarify the landlord only has limited rights and opportunities with which to make repairs, because the condominium board usually has the responsibility and power to repair the area outside the retail unit. Most landlords will not grant tenants the ability to bring an action against the condominium board in the name of the unit owner if needed repairs are not completed in a timely fashion.

Escalations

The escalations need to match the structure of the condominium. The share of tax increases, for example, for a condominium unit should reflect the appropriate portion of the premises the retail lessee occupies in that particular building.

Non-Disturbance Protection from a Condominium Default

In New York City, it is almost always true that a retail tenant’s rent payment vastly exceeds the landlord’s payment of the monthly common charges. A tenant, however, may have very valid concerns about what happens if a condominium unit owner defaults if the condominium board gives them a special assessment to pay. To prepare for such an event, tenants should ask the condominium board for non-disturbance protection. A potential retail tenant may also include a provision in their lease that requires the board grant them non-disturbance protection. If a non-disturbance agreement is not granted by the condominium board, potential retail tenants can examine the history of payments from their prospective landlord to the condominium as well as the rents paid to their prospective landlord to determine the level of eviction risk that exists for them in this situation.

Retail & Residential Lease Legal Help    

Looking for top notch New York legal help with your residential or retail lease agreements? Look no further than the talented team at MOWK Law for all your real estate law needs.

foreclosure notice

What Are the Steps of the Pre-Foreclosure and Foreclosure Process in New York?

When unexpected financial difficulties arise, New York homeowners often struggle to keep up with a major expense in their lives – their mortgage payment. Many options are available to aid homeowners in making their payments or, if this option is no longer feasible, appropriately disposing of their property in a manner that recoups as much of the outstanding loan balance for lenders as possible. Loan modifications, refinancing, short sales, deed in lieu, and foreclosure are all viable options for homeowners, but foreclosures are generally the least favorable due to their impact on the borrower’s credit. They also are the most complex course of action, and we explore them further below.

Property Affected by Traditional Pre-Foreclosure and Foreclosures New York uses judicial foreclosure for real property such as a traditional family home or condominium. Co-op apartments are actually personal property, as the mortgagee owns a share in the company that owns the property and leases it back to them – meaning they operate under different foreclosure procedures and timelines. Judicial foreclosure requires a lender to file suit against the defaulting homeowner to enforce its lien against their house.

New York Pre-Foreclosure Steps

Prior to filing a formal foreclosure complaint, a loan servicer or mortgage lender must wait until the borrower is 120 days late on payments to allow them time to seek a loan modification, refinancing, or other avenues to cure their default. New York also requires all residential mortgage lenders to provide 90 days notice before foreclosing on an owner-occupied home. The notice must provide information on how homeowners can cure their defaulted loan and list of government-approved counseling agencies that can assist them.

Depending on the mortgage terms, a lender may be obligated to send a breach letter letting the homeowner know their loan is in default and indicating the lender’s intent to accelerate the entire amount due if the homeowner does not cure the default. Notice usually includes:

  • A statement the homeowner is in default;
  • Methods to cure the default;
  • An allowance of at least 30 days to cure the default; and
  • Notice that failure to cure may end in foreclosure proceedings.

Though no uniform rules exist for delivery method or notice contents, mortgages requiring a notice of breach will usually set out what must be included in the notice and the method of delivery required.

New York Foreclosure Steps

After the required 90-day New York notice period, a lender may file suit in court to try and foreclose on a homeowner’s property. The homeowner has a prescribed time frame to respond to the complaint and raise any applicable defenses to foreclosure. Failure to answer results in a default judgment. If the homeowner answers, a sequence of actions may commence, including:

  • A Certificate of Merit or “Attorney Affirmation” from the lender’s attorney stating they have reviewed the necessary documents and that plaintiff if the creditor who may enforce its rights.
  • An Affidavit of Service which may be required from the lender’s attorney.
  • A Mandatory Settlement Conference held within 60 days of the affidavit of service’s filing.
  • Formal Discovery in litigation if settlement cannot be reached.
  • Filing a Motion for Summary Judgment or Default Judgment to try and prevail without going to trial.
  • A trial following an unsuccessful (or no) Summary Judgment Motion.
  • A Motion for Final Judgment of Foreclosure and Sale following a court judgment asking for a judgment authorizing a court-appointed referee to auction the property.
  • Reinstatement of the loan at any time prior to the Judgment of Foreclosure and Sale (JFS), provided the homeowner pays all overdue amounts, late fees, and costs.
  • A publication of a sale in a newspaper at least 30 days before it occurs if the homeowner doesn’t cure prior to the entering of a JFS and setting a sale date.
  • A foreclosure sale where the property is sold to the highest bidder. Upon paying, the winner owns the property.
  • The lender may seek a deficiency judgment against the former homeowner within 90 days of the foreclosure sale if the property sells for less than is owed. The deficiency is the amount the auction sale price or fair market value falls short of the amount owed by the homeowner.
  • Eviction proceedings as necessary in the event the homeowner does not voluntarily vacate the premises after a foreclosure sale.

The complex proceedings leading up to and during a foreclosure are best maneuvered by an experienced New York real estate attorney to avoid any costly mistakes regarding one of your most sentimental and valuable assets – your home. If you are dealing with a residential or commercial foreclosure, get in touch with the talented team of New York foreclosure lawyers at MOWK Law today to discuss your legal options further.

What Obligations Does a New York Landlord Have to Their Tenants?

Landlords can make a substantial amount of money by renting or leasing to tenants, but that opportunity comes with a large amount of responsibility. Federal and state laws grant rights to tenants and imposes duties on landlords in order to structure an equitable relationship between the parties and provide clear procedures for handling financial matters and resolving disputes. Read on for a brief overview of the major obligations a landlord in New York has to their tenants.

1. Comply with Housing Laws

City, state, and federal governments have enacted laws that protect tenants from discrimination and exploitation by landlords. The federal Fair Housing Act has created protected categories most landlords cannot use to reject applicants – race, religion, sex, family status, disability, or national original. This does not prevent landlords from rejecting applicants for issues such as bad credit or a history of eviction. New York’s housing law goes beyond the federal standard and includes prohibitions on discrimination based on sexual orientation and marital status. New York City has gone even further, prohibiting discrimination based on gender identity.

2. Prepare a Legally Compliant Written Lease or Rental Agreement

A rental agreement or lease between you and a tenant will set out the contractual nature of your relationship and dictates the key terms of your agreement such as rent amount, duration of rental, and rules the tenant must follow. It is also a place to include important mandatory disclosures about hazards such as lead paint and procedures for securing, holding, and returning security deposits. A legal, effective agreement will help you avoid disputes for the duration of your contractual relationship.

3. Maintain a Safe, Livable, Sanitary Environment

As a landlord you have a legal duty to maintain a livable, safe, sanitary living space for your tenants. This includes maintaining functioning heating systems, pipes, electrical wires, and water under New York’s implied warranty of habitability. Failure to do so allows tenants to take remedial actions such as repairing defective conditions themselves and deducting from the rent owed to you – even withholding rent altogether in certain situations if you are notified of problems and fail to make repairs.

4. Follow Established Procedures in Cases of Eviction or Tenancy Termination

As a landlord you cannot simply evict a tenant. A lease must be up, a tenant withholding rent, or a tenant severely violating the terms of their lease all constitute valid reasons for eviction. In these cases, you must take your tenant to court, establish valid claims for eviction or termination, and receive a warrant of eviction from the court to validly vacate the tenant.

5. Never Engage in Retaliatory Behaviors

New York law prohibits retaliating against a tenant for complaining about unsafe or inadequate living conditions. It is important to establish a documentary record of making repairs, logging complaints, and handling issues that arise with your tenants.

6. Maintain Tenant Security Deposits Properly

You do not have the right to spend a tenant’s security deposit and cannot commingle a tenant’s money with your own. At the end of the lease your tenant is entitled to receive a return of their security deposit with interest even if they do not specifically ask for it. Receipts are a wise idea to avoid unnecessary disputes, as are move in and move out checklists and itemized security deposit statements.

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What is an Offering Plan?

When dealing with New York real estate, prospective buyers of condominiums and co-ops should receive and review offering plans provided to them at least three business days before signing a contract with either the developer or the co-op sponsor. This document is critical to review prior to purchasing real estate as it should disclose vital information including floor plans, unit pricing, buying procedures, building bylaws, board finances, board operations, and in the case of buildings not yet operating how those buildings will be run once open.

Understanding Offering Plan Components

There are two components of offering plans – a narrative segment followed by supporting exhibits pertinent to the property and the prospective transaction.

Narrative

In the narrative section, the property’s features and purchase procedures are disclosed to the potential buyer. These details will usually include:

  • A buyer’s responsibility for down payments;
  • The timeframe for closing;
  • Delegating who is responsible for handling taxes and closing costs;
  • Developer contact procedures if construction issues arise;
  • Time limits and manner for reporting construction defects; and
  • The operations of the developer regarding the co-op or condominium complex.

When reviewing the narrative section of the offering plan, potential buyers should be wary of several situations that increase risk and should be disclosed. The risks may affect the property, price, or buying procedures and include:

  • Lack of a financing contingency in the offering plan may prevent a buyer from receiving their down payment back if they cannot secure purchase price financing;
  • Any adjacent property the developer owns (and could develop) that may affect future use and enjoyment of your property;
  • A mixed used property where residential owners have no control over how commercial units are used; or
  • A leasehold co-op or leasehold condo in which the buildings are developed by a party who doesn’t own the land under the building.

Offering Plan Exhibits

The offering plan also contains a section of exhibits for buyer review. A copy of the by-laws, associated documents pertaining to the property, the proposed purchase agreement, architect descriptions, and floor plans are usually included. Though these documents are often voluminous, tedious, and dense, it is important to read them over thoroughly or seek legal counsel, as some details may be easily overlooked and the plans may also offer a very small window for down payment return if there are any terms that and fundamentally non-negotiable and will destroy the deal.

Negotiating Terms of Condo or Co-Op Offering Plans

Nonnegotiable terms listed in the offering plan may include charges associated with the property you are purchasing, as these are often directly based on the building percentage you will own. However, even if some terms in an offering plan are not flexible, there are many elements that may be up for discussion. Closing costs, fixtures and appliances, transfer tax amounts, parking spaces and other building amenities may all be negotiable. Depending on parties, property, situation, and location, even something as fundamental as the price of the property unit may be negotiable under an offering plan.

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At MOWK Law, we help buyers and sellers with a range of real estate law issues. If you are looking for an experienced New York real estate law firm, get in touch with us today.