CoopAndCondo.com - Addressing the realities of Residential Real Estate

From the Law Firm of Gitter & Lehrer PLLC

My Top Ten Residential Realities...

My Top Ten Residential Realities...

Celebrating Ten Years 

After ten years of writing this blog, as you might expect, I’ve accumulated a few pet grievances with the way residential real estate transactions play out. Here’s my top ten:  

1. Using an Out of State Bank

It doesn’t happen as often as it used to, but some buyers still insist on using out of state banks or internet lenders that are completely unfamiliar with the way things work in New York. Our town is quirky enough as it is. When you invite a lender into a transaction who doesn’t really know what a co-op is, you are asking for big delays and potentially big problems. Please avoid using an out of state bank unfamiliar with New York conventions at all costs.

2. Using a Managing Agent Who Doesn’t Have an Office Where the Building is Located

I can’t adequately describe the pain of traveling to a managing agent’s office outside of Manhattan, for a closing on a Manhattan co-op (condos don’t require the managing agent’s presence at the closing). That being said, if the apartment is located outside Manhattan, there is an expectation that the closing will be held in the borough in which the building is located. Fair enough. When the apartment is located in Manhattan, however, there is an expectation that the closing will take place in Manhattan. It is an unsolvable mystery as to why the Board of a Manhattan co-op would choose a managing agent located in Brooklyn, Queens or even Westchester or Nassau counties. It is a complete waste of time for all involved to travel outside of Manhattan for such a purpose. It doesn’t happen very often, but when it does, we all dread the day the closing will occur.

3. The Unprepared Broker

It is frustrating when a seller’s broker sends out a deal sheet on a new transaction and the broker does not have the due diligence materials ready to go (that is, the offering plan, all amendments, most recent financials and the purchase application requirements). The apartment has been on the market for weeks, but the broker did not use that time to get everything organized. And along these lines, it is incredibly annoying when the broker sends out barely readable copy of the offering plan or an incomplete document. It is challenging enough to have to grind through a 400 or 500 page document. When pages are missing are upside down or not legible, it makes the job of the purchaser’s attorney that much more difficult.

4. Too Much Chit Chat at the Closing Table

The closing is the culmination of a lot of hard work, but there is often business to attend to or issues that come up at the last minute. Mindless chit chat by the brokers and other guests at the closing table, drives the attorneys nuts and is very distracting. Save the convo’s for the post closing lunch or cocktail. Read the paper, relax and wait for your check.

5. Uncooperative Managing Agents

Recently, I had the pleasure of working on a deal where the property manager for the condo was incredibly helpful. I felt like I had time traveled to a galaxy far, far away. In today’s practice, managing agents charge big fees to answer an attorney’s due diligence questions, and some property managers often refuse to answer any questions. It is hard to convey to a purchaser that information about the building may be quite limited. We’re talking about some significant price tags, yet a buyer is often forced to go ahead with a purchase without a clear picture of the financial or physical condition of the building. The buyer’s attorney is forced to rely on the Board minutes, which can be stale, poorly written or sanitized to prevent disclosure of any material information. This practice is just wrong and should stop.

6. The Curious Case of the Sponsor Punch List

Despite the many years that I have been involved with new construction purchases for clients, I still find it inexplicable that the New York State legislature and the New York Attorney General’s office allow developers to force the sale of apartments even though there can be an extensive punch list of items in need of repair or replacement. Developers are not required to post an escrow to insure completion of open items, and in most cases, the offering plan only requires that open items be completed within a “reasonable time”. I’ve even seen some plans over the years, where the AG did not even require a pre-closing inspection. How can this be allowed? It literally makes no sense. In all fairness, there are developers that attend to the punch lists in a reasonable time and complete the work as promised. Unfortunately, there are many deals where the developers do not complete open items and issues can continue for many months after the closing. 

7. Special Risks Should Not be a Get Out of Jail Free Card

All offering plans contain a section at the beginning of the plan entitled “Special Risks”. That section of the Offering Plan contains a series of disclosures by which the sponsor reveals possible problems that could arise with the development, as well as a series of disclosures that the AG requires based upon issues and problems that have arisen over the years in previous offerings. This list of special risks can run 20 or 30 pages. Although many of the disclosures are “boiler plate”, meaning that the disclosed information is basic information that a purchaser may already know, there are many disclosures that are complex, hard to understand (sometimes intentionally) and very difficult to explain. At the end of the day, the special risk section serves to protect the sponsor from possible claims under the theory that there has been full disclosure. Since the offering plan has been approved by the AG’s office, the sponsor is in a very good position to shield itself from liability. I can’t tell you how many times I have asked the sponsor’s attorney for a clarification of a special risk only to be told, “read the plan”. Which leads me to my next item on the menu.

8. You Can’t Sue the Sponsor

They say nothing clears the mind like a hangman’s noose. Why bring up the wild, wild west? Sometimes dealing with sponsors is like being back in Dodge City. It can feel like there’s no sheriff in town. It is a zero sum game: sponsor’s control just about everything and your average purchaser has no control and no leverage over anything. If I could point to one reason why sponsors retain so much power over potential purchasers, it’s this: under New York’s securities statute, called the “Martin Act”, a purchaser can’t sue the sponsor for material misrepresentations or omissions in the offering plan. Only the AG can sue the sponsor for failing to comply with the terms of the offering plan. Yes, there are often lawsuits brought by a co-op or condo against the developer of a building, but those claims usually revolve around post-construction defect claims and don’t arise from promises or representations made by the sponsor in the offering plan. The courts, however, have consistently held that an individual has no “private right of action” against the sponsor under the Martin Act for failing to fulfill its obligations under the offering plan filed with and approved by the AG. Since the AG does not bring an extraordinary number of actions against sponsors, developers and their hired guns know that it is very difficult for a purchaser with a problem to get relief. Back to my hangman. On the other hand, if the sponsor knew that an aggrieved purchaser could have his or her day in court, one could argue that the sponsor’s approach to disclosure and completion of its obligations could change radically. Once the sponsor can be held liable for bad behavior directly by the purchaser, we may actually get a more level playing field. Of course the other side will argue that allowing a private right of action will bring an onslaught of meritless litigation and perhaps that’s true. However, the pendulum has swung so far in favor of the developer in New York, that the statutory rules of engagement are due for a major overhaul.

9. Brokers AWOL at Closing

Over the past few years, a new trend has developed. Brokers have decided it’s not necessary to show up at the closing and don’t feel obligated to send anyone to pick up their check. Invariably, the absent broker asks the attorney representing their client or customer, to hold the check for delivery after the closing. I realize that we all have busy lives and obligations. Sometimes sitting at a closing table for 2 hours just is not possible. Considering the size of the brokerage fees payable in connection with most apartment transactions, I think it’s fair to say that someone should be present from each side, just in case anything comes up, and to pick up the check when the closing is concluded. If the principal broker can’t make it, send someone from the broker’s “team”. I am confident many attorneys would agree…

10. Post Closing Hell

This concern is equal parts annoyance and avoidance. Here's the rule of thumb: If at all possible, avoid post closing obligations. Sometimes an issue arises that can't be completed at the closing table. Perhaps an appliance is not in working order, a leak occurs somewhere in the apartment, or a Department of Buildings permit is discovered to be open. The bigger the issue, the bigger the concern and complexity of getting it handled after the closing. Parties will usually agree to a monetary escrow, to be held by the seller's attorney, and a period of time to get the matter resolved. What happens if the matter isn't addressed as promised, varies from escrow agreement to escrow agreement. The buyer will want the largest escrow possible and the seller the exact opposite. Post closing matters are almost always a hassle as the seller has very little incentive to get things handled on a property he or she no longer owns and for which he or she has already been paid almost in full (except for the escrowed funds). It's always a judgment call as to whether a purchaser should agree to an escrow or simply delay the closing until the problem is resolved. Sometimes the purchaser has no choice but to work out an escrow as an interest rate may be expiring or because the purchaser needs to move into the apartment as there is nowhere else to live. All understood. If at all possible, avoid post closing issues. You'll be happy the transaction concludes at the closing table. 

That Feels Better...

Completing a real estate transaction in New York City these days can get quite complicated. I don’t expect my top ten list to get handled any time soon, but the real estate community would be well served to consider making a few changes so that sellers and purchasers can have a smoother journey to the closing table.

 

When it comes to the description of the apartment in the listing, trust, but verify...

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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Can I insist on closing on the date stated in the contract?

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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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I'm selling my apartment. When can I cancel my insurance coverage?

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My condo has requested access to my apartment in order to make repairs to the plumbing lines located in the ceiling. Am I obligated to give the super access to make the repairs?

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