CoopAndCondo.com - Addressing the realities of Residential Real Estate

From the Law Office of Ronald H. Gitter, Esq.

Residential Realities January 2012

       
Residential Realities January 2012

January 30, 2012-- The Special Risk Index: What the Disclosure Says and What it Really Means…

Offering plan disclosure is a topic of great interest in this blog. Specifically, there is a treasure trove of information about the development located in the “Special Risk” section at the front of the book. Those disclosures present the risk, but rarely quantify the significance of the information being disclosed. Some disclosures are required by the Attorney General’s office in every plan and some risks are unique to a particular situation. To help translate the information and quantify the level of concern, I am introducing my Special Risk Index. The Index will explain the real meaning behind the disclosure and rate the risk to the purchaser. The list will increase as time permits and as new risks come my way. Here we go…

The Performance Bond Disclosure

The Offering Plan for a new construction condominium contains a Special Risk disclosing that the Sponsor does not have a bond for the performance of the sponsor’s obligations. Should a purchaser be concerned?

It depends. I give this Special Risk a “5” on the Special Risk Index (10 being the most risky and 1 representing a risk of minimal concern).

Under Part 22 of the Regulations promulgated by the AG for offering plans that cover new construction, the sponsor is obligated to disclose whether there is a bond for performance of the sponsor’s “obligations”. Those obligations include the completion of construction and the sponsor’s other financial obligations as set forth in the plan. What exactly is a performance bond? When buildings are under development, it’s possible to insure that there will be funds available from a surety company if the sponsor runs out of money. This “insurance policy” is known in the trade as a “completion bond” or “performance bond”. The AG’s regulations require disclosure of whether the sponsor is obtaining such a bond to insure the sponsor’s performance under the plan. This requirement is somewhat comical, as I have never seen a sponsor obtain a performance bond, probably because of the significant cost. The disclosure in the plan usually reads along the following lines:

“No bond or other security has been furnished to secure the performance of the Sponsor’s obligations. Although at the time the Offering Plan is accepted for filing the Sponsor will be financially capable of performing Sponsor’s obligations, the subsequent ability of the Sponsor to perform it obligations will depend upon the Sponsor’s financial condition at the time”.

Translation

If for any reason, the sponsor runs out of money, it’s the purchaser’s problem, as the sponsor has no bond or other security for completion of the project. Although most projects do get completed, when a project does run into trouble during construction or after the sponsor has begun selling units, there is no regulatory requirement that the sponsor perform its financial obligations and the chips just fall all over the place. One has to wonder why a sponsor with no track record and no demonstrated financial ability can go ahead and start selling units to the public without securing the obligation to complete the project in some fashion. Disclosing that the sponsor might not be able to perform may educate the purchaser, but it does not protect the purchaser.

Residential Reality: Know Thy Sponsor

In the world we live in today, where purchasers rarely buy apartments in buildings that have not been completed, the significance of this risk has been minimized, but not eliminated. As the recession has demonstrated, developers can run into trouble when the real estate market softens as it did after Lehman’s demise. Purchasers are well advised to research the backgrounds and track records of the individuals involved in the offering as well as the current status of the project. Even if the building has been completed, financial problems can occur long after construction is over. As the expression goes, past performance is no indication of future performance, but it certainly says a lot about the folks you’re dealing with and the likelihood of their ability to perform their obligations under the plan.

January 19, 2012--High Anxiety: Lending Vertigo Continues…

Waxing Philosophical

At a recent presentation I gave on the perils of lending guidelines and the possibility for deals getting derailed when co-ops and condos can’t or won’t satisfy the required regulations, an agitated upstate attendee interrupted my introduction to school me on the beauty of the free market. Apparently, if co-ops and condos fail to satisfy the bank's underwriting standards, and buyers can’t get financing, then the value of the apartments should adjust downward to reflect the co-op or condo’s financial inadequacies and all will be right with the world. This hardball approach works best in a town similar to the one in which my counterpointer resides,  where there are only two co-ops. A solution without a problem. For the rest of us, the battle is ongoing...

And Then There’s MetLife…

One of the active participants in the residential lending space over the last few years has been Metlife. The loan officers and underwriters exhibited a flexibility and willingness to work to get deals done. In a number of cases, I was able to get loans funded with this bank that proved impossible with others. Ironically, Metlife now abruptly exits the marketplace, citing excess regulation among other things. In other words, residential loans are too much of a hassle, so 4,300 people are now looking for the next work station to occupy.

“Oh…Xiety”

This development speaks volumes about the current difficulties in the residential lending environment. Buyers are left with few choices for obtaining loans and face headwinds when it comes to clearing loan conditions. Yes, there is money available for mortgage financing, but simultaneously, there is an increasing hesitancy to make those dollars available unless both the consumer and his or her proposed residence are squeaky clean from an underwriting perspective. Even private banking customers are feeling the pain, as they are often forced to jump through lending guideline hoops, usually reserved for regular folks.

Residential Reality: Don’t Take “No” for an Answer

I’ll share my own anecdotal research from several recent transactions involving initially uncooperative lenders. Borrowers and their counsel are well advised to keep hammering away at their loan officers and underwriters to find solutions to the removal of loan conditions. In a number of cases where lenders initially refused to accept an alternative for removing a condition relating to the borrower’s finances or to the co-op or condo, I was able to find a solution or an exception was made and the condition was omitted. Expect frustrating delays for removal of troublesome conditions, but it can be done…

January 12, 2012--The Truth Factory: Where buyers face facts…

Internet Sleuthing

Recently, fellow blogger and friend, Sandy Mattingly, queried me on whether attorneys use “the Google” (a phrase of his coinage) as a part of due diligence. The answer should be, but isn’t always, “yes”. Irrespective of what attorneys may or may not be doing to complete due diligence in connection with the purchase of an apartment, the consumer appears to be way ahead on using the Internet for real estate research.

 As We Know, Buyer Beware

It’s axiomatic that the buyer must investigate all aspects of a property before agreeing to go ahead with the purchase. In New York City, that due diligence must be completed before the contract is signed. Once the contract is signed, unless covered by the seller’s representations and covenants, the property is sold to the buyer in “as is” condition. So the buyer must take all the necessary investigative steps soon after the offer is accepted.

Co-op and Condo Caution

With apartment purchases, as readers of this blog know, due diligence includes review of the offering documents, minutes of the Board, discussion with the property manager and a variety of other inquiries and procedures, including inspections, that may be appropriate under the circumstances. As the world continues its speedy digital evolution and revolution right before our eyes, using the Internet as a research tool is now front and center as a key component of co-op and condo knowledge. Information on the Internet is like a roach motel, facts check in, but they never check out. If there is anything of any significance about a particular building, it will find its way into the cloud and stay there. But the savvy consumer knows this quite well. Anxious buyers spend hours staring at their laptops and iPads tracking down whatever they can about building histories and problems. Buyers are often more knowledgeable about properties than the brokers who represent those properties. Brokers who adopt a see no evil, hear no evil, speak no evil philosophy about a property are usually in for a big surprise.

It’s Not Perfect

Whenever information has no filter, there is always the possibility that the information is not accurate, no longer relevant or its truth exaggerated. Relying solely on the Internet, however, is not a great idea. That being said, it can be a valuable source of background information, and attorneys and buyers should be hitting the search button as early in the deal as possible.

January 1, 2012: A Real Estate Rave--Notes on an Industry Happening...

Barcamp Bumps it up a Notch…

It doesn’t take much convincing in the world of residential real estate, that the way business is transacted has been transformed from a personality driven analog model to a technology dominated digital environment. Many in the residential brokerage business struggle with how to incorporate these new internet and social media tools into the everyday grind of getting deals done. On January 9th, the mysteries of those technologies get a little easier to understand.

Spontaneous Intelligence

The annual New York City version of Real Estate Barcamp will take place on that date at Simple Studios in Manhattan. It is a day-long event in which a group of very smart real estate professionals gather to discuss technology, marketing, trends and a myriad of other issues that will impact the real estate business in ‘12 and in the years ahead. A movable feast of ideas that evolves as the day goes on, it is part seminar, part tutorial, part support group and just part party.

Mark Your Calendars

There are a few tickets left, so consider attending an event that might transform your business.

Simplifying the complexities of Cooperative and Condominium transactions in New York City

Asked and Answered

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I don’t smoke, but the smell of smoke is wafting into my apartment from my neighbor. Is there anything that can be done to remedy this condition?

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I’m selling my co-op tomorrow and my bank attorney has not yet received the stock certificate and proprietary lease from my bank. Will the closing have to be adjourned?

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The seller has indicated that there was a leak in the bathroom from the apartment above that has been repaired in all respects? Can I rely on seller’s representation to that effect in the contact?

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My mortgage lender has informed me that the cooperative in which I am purchasing an apartment has inadequate insurance coverage and has requested that the co-op increase its coverage to meet the bank’s new minimum requirements. Can the bank withdraw its underwriting due to a lack of insurance coverage by the co-op?

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The commitment letter included a condition that my loan was subject to a “second review” by the investor to whom the loan will be sold. Has my commitment letter been issued?

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Can I purchase my co-op in the name of a trust?

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Can I allow the seller to remain in possession after closing?

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There’s a repair needed in the apartment that the Seller promises to remedy after the closing. Is that a good idea?

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Do I care who the bank attorneys are?

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Do I have to go to the closing?

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One of the conditions in my loan commitment states that the monthly maintenance cannot increase by more than five percent? Is that a problem?

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Can I have a roommate after I purchase my co-op apartment?

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Can I undertake renovations before the Closing?

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Do I need a home owner’s insurance policy for my apartment at the time of my closing?

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Should I let the broker do the walk through?

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Once I get a loan commitment, is my loan approved?

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When it comes to purchasing an apartment, what exactly is due diligence?

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Do I have to let the maintenance people in to fix a building system?

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Does my dog have to be interviewed by the Board?

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Is buying an apartment in a small building a good idea or a bad idea?

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Can I fudge on my numbers in my financial package to the Board?

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Should I use a mortgage broker or should I go direct to a bank?

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Should I have the apartment inspected before I sign the contract?

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Do I Really Have to Give the Board My Tax Returns?

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I am purchasing an apartment with extensive landscaping on the terrace. Can the co-op or condo make me remove landscaping that was existing at the time of my purchase?

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I have an opportunity to buy a garage space, but the sponsor is calling the arrangement a “license” rather than a “purchase”. Does that matter?

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We are considering an apartment that will require us to move the bathroom to another location in the apartment. Is such a move possible?

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The seller’s bank can’t locate the stock and lease for the co-op closing. Can we still close?

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The broker told me that I can adjourn the closing for 30 days? Is that correct?

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The Offering Plan for my condo indicates that the apartment has a “lot line” window. Is that a problem?

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My dog bit someone in the lobby and I have been notified that if it happens again, my dog will have to go. Does the Board have the power to restrict me from having a pet?

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There is an unobstructed view from the apartment I am considering, but there is a vacant lot directly in front of that side of the building. Is that reason for concern?

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The Managing Agent called and it looks like my finances will not be sufficient to get Board approval. Is there anything I can do?

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The managing agent has had our application to purchase a cooperative apartment for three weeks and nothing has happened. Is there anything we can do to move things forward?

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We are considering an apartment in a co-op where the sponsor still owns units. Is that a problem?

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The seller’s apartment presently has a storage unit. Does the storage unit transfer with the apartment?

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We’re closing in three weeks, but our lease is up next week. Can we move in before the closing?

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I just did the walk through on the purchase of a sponsor unit and we have an extensive punch list. Will the punch list be completed by the time of closing?

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I’m buying an apartment from a sponsor and the Offering Plan requires me to pay the sponsor’s transfer taxes and attorneys fees. Do I have to?

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The purchase price of my apartment is over $1,000,000.00. Is the transaction subject to the “mansion tax"?

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I’m selling my apartment, but I’m not a resident of New York State. Are there any special closing costs?

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We did the walk through and the apartment was filthy. The contract required the apartment to be “broom clean”. Can we complain at the closing?

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I have to sell my apartment in order to afford the new one I’d like to buy. Can the contract be contingent on the sale of my existing apartment?

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I’m a famous person (no, I really am) and I really don’t want my financial information given to eight strangers on a co-op Board. Is there a way to avoid that?

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I’m the executor of the estate of a deceased shareholder. Do I have to go to the closing?

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I just graduated law school and have a job with a large law firm. I have a significant salary, but no liquidity or significant assets. Will I be able to buy a co-op?

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The listing indicates that the apartment has “roof rights”. How can I be sure?

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When buying a condo, is it worth the time and effort to get an assignment of the seller’s mortgage?

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The Seller removed an expensive chandelier right before Closing. Is that permitted?

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My husband and I found an apartment we love, but there’s a bidding war. Should we participate?

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We love the apartment, but the building has bad financials. Should we go ahead?

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My closing is in December, but the lease for my apartment does not expire until the following March. What do I do with my lease?

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We are buying a condo, but we have a delayed closing as the seller has a tenant in place for the next six months. We will be able to retain our loan commitment for an extended period of time?

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Should my husband and I take title as tenants by the entirety, tenants in common or as joint tenants?

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When a gay couple buys the shares of a cooperative or buys a condominium apartment, what is the best way to hold title?

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I have not been able to make my co-op mortgage payment for the past three months. If the bank declares my loan in default, how long will it take before the bank forecloses on my apartment?

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A co-op owner asks: I have found that maintenance is usually higher in coops than in condos because of the contribution by the shareholders to the building's underlying mortgage payments. In condos, the unit owners only pay for real estate taxes and common charges for common areas. Will the monthly maintenance be reduced after the underlying mortgage has been fully amortized?

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Can a corporation or other business entity own the shares of a cooperative apartment?

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I’m buying an apartment in a building designated as a “landmark.” Should I be concerned?

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I am buying a co-op that needs major renovations. The super has offered to do the work at a significant discount. Is that a good idea?

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We just submitted the Board package and we realize that we neglected to disclose a lawsuit against my husband’s company, in which my husband is named as a defendant? The lawsuit is covered by insurance and my husband is indemnified from liability by his employer. Should we notify the managing agent and amend the purchase application?

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We are negotiating the contract and we just found out that there is a substantial assessment that will go into effect the month that we close on the purchase. Should the assessment be deducted from the purchase price at closing?

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The bank attorney was two hours late to the closing. Was that my attorney’s fault?

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I’m buying a cooperative apartment in Manhattan, but I move out to the Hamptons from June to the end of September each year. Will I be able to sublet the apartment each year when I’m away?

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I just got the purchase application package and it's twenty pages long. Should my broker be helping me with organizing the required documents?

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It’s the day before the closing and I just found out that the maintenance for the apartment is higher than the maintenance stated in the contract. Is that grounds to terminate the contract?

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The financials for the condo are more than a year out of date and there is a delay issuing the new financials. Should I be concerned?

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The contract requires “official bank funds” in the form of certified or official bank checks. Can I bring “official" checks from my brokerage account?

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My parents want to buy me an apartment while I’m in graduate school in Manhattan. Will a co-op allow me to purchase the apartment, if my parents are co-owners?

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I obtained sole ownership of my condo in my divorce, but the deed for the apartment is still in both of our names. Will my ex-spouse’s cooperation be required when I’m ready to sell the apartment?

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I just found out I have to pay a fee to have my mortgage recorded. Is that right?

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I am buying an apartment in a small building and I just found out that the elevator is being renovated and will be out of service for three months. Do I have to close if the elevators will not be operational on the closing date?

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My husband and I own a co-op and we would like to transfer the shares to an irrevocable trust that we recently created for estate planning purposes. Will our cooperative allow us to make that transfer?

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The seller is a foreign citizen and does not have a social security number. Does that prevent the seller from selling the apartment?

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An “assessment” was imposed by the co-op Board after the contract was signed. Is payment of the assessment the seller’s responsibility?

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There is a leak in my apartment and the Resident Manager is not being responsive. Should I call the Board president?

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I just bought an apartment and I am only refinishing the floors and repainting. Do I need the consent of the Board before I get started?

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The co-op I’m interested in is pet friendly and I have a dog. Is there any chance the Board could approve my application without approving my pet?

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We purchased our apartment in January, but our first mortgage payment is not due until March 1st. Why isn't the first payment due February 1st?

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I’m buying an apartment from a sponsor and the contract does not provide for a “mortgage contingency”. Is that a provision that I can negotiate into the contract?

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I am buying an apartment from a sponsor and the contract provides for the buyer to pay the sponsor’s transfer taxes and legal fees? Is that normal?

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I'm buying a condo and my attorney just ordered the "title report". What's a title report?

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There is a leak in my apartment and the Resident Manager is not being responsive. Should I call the Board president?

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My boyfriend and I are interested in buying our first apartment in a new construction condominium. Our mortgage broker tells us we should qualify for a 90% loan, but it will be a close call for the bank. The sponsor wants us to sign a “no contingency” contract. Is that a good idea?

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We are considering a condo purchase in a new development that is only 25 percent sold. There is a bank that has approved the project and will make the loan, but should we be concerned about the number of units that the sponsor still has to sell?

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We are buying an apartment that has been extensively renovated. Among other things, the size of the master bath was significantly increased. Can we rely on a representation in the contract that all required approvals were obtained from both the Cooperative Corporation and from the New York City Department of Buildings?

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We received a draft of the contract of sale for the cooperative apartment we are buying and our social security numbers are on the front page! Our attorney told us that we will have to provide our identification numbers to the managing agent for a credit check as a part of the Board package, so it’s not a big deal. Do we have to list our socials on the contract?

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The listing stated that the apartment was 1,100 square feet, but the appraisal measured the apartment at 900 square feet. Can we cancel the contract and get our money back?

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I'm about to pay off my co-op loan. What evidence will I have from the bank that the loan has actually been paid off?

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I am considering an apartment in a new construction condominium. There is park under development by New York City that will greatly enhance the value of the condominium when it’s completed. Although the sponsor’s salesperson indicated that the first phase of the park will be completed in the next year or so, the Offering Plan contains a “Special Risk” that states that the sponsor gives no assurance as to when, if ever, the park will be completed. Who and what should I believe?

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We are in negotiations to purchase a co-op apartment on the Upper East Side. Our lawyer reviewed the minutes and discovered that the building has a bedbug infestation. Should we go forward with our purchase?

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My purchase application was approved by the co-op Board, but it is conditioned upon my providing a maintenance deposit and guaranty by my parents. Do I have to comply with the conditions?

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At my closing, I had to reimburse the Seller for his New York State “STAR” rebate that appeared on the maintenance statement for the month following the Closing. What exactly is the STAR rebate and will I be able to obtain the rebate as well?

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I'm selling my co-op next month and my attorney aked me to "freeze" the line of credit I have with my bank. What exactly do I have to do?

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I just found out that the seller will be unable to close for an additional two weeks. As a result, I will have to extend my rate lock, at a cost of $1,200.00. Is the seller obligated to reimburse this cost?

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I am buying a new construction condo and the Offering Plan is over 400 pages. Do I need to read the entire Offering Plan?

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We ran across a co-op that has a few “sponsor owned” apartments for sale. Is there any advantage in buying one of the remaining sponsor apartments?

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I am about to make an offer on an apartment, but I have not been provided with the current financial statements for the co-op. Am I entitled to review the financials before I make my offer?

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We are selling our apartment to our neighbor, but our neighbor can’t afford to purchase our apartment unless she sells her apartment. Her lawyer wants the contract to provide that the purchase of our apartment is contingent upon the sale of her apartment. Our lawyer is advising us against including a provision that makes the transaction contingent on the sale of the buyer’s apartment. Should we go along with the contingency?

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We are selling our co-op and the buyer is not obtaining a mortgage in connection with the purchase. The contract required the Board package to be submitted within 10 business days after the fully-executed contract was returned to the buyer. The buyer is two weeks late in submitting the package. Is the buyer in default?

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I’m selling my condo and I have not been able to pay my common charges for the past six months (I lost my job). I have a buyer for the apartment, but the Board of Managers will not release the Waiver of the Right of First Refusal, unless I pay the outstanding balance of the common charges. I’m between a rock and a hard place, as I don’t have the money. What should I do?

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I am combining two adjacent apartments that I own and I want the co-op to issue one stock certificate for both apartments. There is an outstanding UCC lien against one of the apartments. The other apartment is owned free of any liens. Can the co-op object to the combination?

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My attorney asked me to contact the managing agent to verify the maintenance and assessment information that's disclosed in the contract for the apartment I intend to purchase. Isn't that my attorney's job?

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Our application to purchase a co-op was turned down by the Board without an interview. Although our attorney asked the managing agent to disclose the reasons for the Board’s decision, none were given. Can the Board just turn our application down without any explanation?

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My bank issued a loan commitment, but then withdrew its underwriting because private mortgage insurance was not available. Will I have a problem canceling the contract and getting my deposit back?

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The seller has a storage bin, but the contract indicates that the apartment does not come with a storage bin. If I buy the apartment, can I be sure that a storage bin be avaialable?

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I’ve been asked to serve on the Board of my co-op. Could I be held liable if the co-op is a party to a law suit?

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I am buying a co-op in Manhattan. The managing agent is located in Brooklyn and refuses to send a closing representative to the attorney’s office for the buyer or seller located in Manhattan. Will everyone have to go to Brooklyn for the closing?

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We are purchasing a condo that was occupied by a tenant at the time the contract was executed. We just did the walk through and there is damage to a portion of the floor that was hidden by the tenant’s furniture. Are we entitled to a repair credit at Closing?

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A loan commitment was issued, but the bank requested an explanation for a $14.00 missed credit card payment that occurred nine years ago. Could the bank withdraw its commitment as a result of this missed payment?

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I'm selling my co-op, which I own with my mother and father. Is it okay to have the closing checks made out to the three of us?

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A leaking pipe inside the wall of my co-op was recently replaced. The following month, my maintenance account was charged $1,000.00 on the theory that the pipe only serviced my apartment. Am I responsible for this repair?

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A condo buyer has a mortgage contingency, but the closing will not take place for six months as the seller has a tenant in the apartment. When should the purchaser apply for financing?

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We submitted our Board package a month ago, but the Board has not scheduled an interview or asked for any additional information. To make matters worse, the managing agent won’t give us any indication as to what’s going on. Is there anything we can do?

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My co-op contract included the seller’s flat screen, but the bank underwriter required that it be removed from the contract as it was “impacting” loan to value. Can the bank do that?

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I am buying an apartment in a small co-op that is self managed. How does the bank obtain the required “co-op questionnaire” in order to complete its underwriting?

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Contact Ron Gitter

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