The Complete Guide to Selling Your Apartment

The Second Best Moment of Apartment Ownership

I often tell my clients that the two best moments of apartment ownership, are the day you buy the apartment and the day you sell it. Much effort goes into each endeavor. Buying an apartment has many more moving parts than selling one, but there are a number of issues that a seller has to address in connection with the sale of an apartment. What follows is a guide for sellers to assist with the process of getting the apartment ready for sale and ensuring a smooth closing.

Choosing A Broker

Although it's possible to sell an apartment without the services of a broker, in most cases, a seller will engage a broker, generally through an "exclusive listing" to represent the seller in connection with the sale. Like everything else in life, getting references from other apartment owners and from financial and legal professionals before you select a broker is extremely important. At a minimum, your broker should be familiar and comfortable with your building and its location. Once a broker is selected, you are well advised to take the recommendations of the broker as to the presentation of the apartment, including suggestions for the removal of furniture and staging, should same be necessary. Although it is your decision as to the pricing of the apartment, you would be well advised to take the counsel of the broker as to the appropriate price listing price for the apartment.

Locating Documents

Once you have selected a broker and signed the listing agreement, make sure that you have located the offering plan for the building. The buyer's attorney will request this document as soon as the deal sheet goes out. It will save time and effort if the offering documents are located at the time the listing agreement is signed and not put off until there is an accepted offer. In addition, make sure that the broker has the two most recent financial statements for your building. Again, the financials will be requested at the time the deal sheet goes out, so obtain a copy from the managing agent if your copies can't be found.

What Does it Cost to Sell You're Apartment?

The main cost for a party selling his or her apartment are transfer taxes payable to New York City and New York State. For sales of $500,000.00 or more, there is a transfer tax payable to New York City in the amount of 1.425% of the purchase price. If the purchase price is less than $500,000.00, the transfer tax to New York City is 1% of the purchase price. The transfer tax to New York State has become more complicated and more expensive. For sales under $3,000,000.00, the transfer tax is 0.04% of the purchase price. For sales over $3,000,000.00, the transfer tax increases to 0.65% of the purchase price. So, if the purchase price was $1,000,000.00, the transfer tax to New York City would be $14,250.00, plus a $100.00 filing fee and the transfer tax to New York State would be $4,000.00. On the other hand, if the purchase price was $3,000,000.00, the aggregate transfer taxes would be $7,750.00 higher due to the increase in the New York State transfer tax rate.

Other Closing Costs

In addition to transfer taxes to New York City and New York State, the seller will also incur costs for:

Brokerage (usually 6% of the purchase price)

Fees from the managing agent of the co-op or condo

Legal fees in connection with the sale

Fees to the attorney for the seller's lender (when the loan is paid off at closing)

An Additional Tax for Non Residents of New York State

If you are not a resident of New York State, at closing, you will be obligated to make an estimated capital gains tax payment to New York State, equal to .0882% of the "net gain" received in connection with the sale. The net gain is determined by subtracting the original purchase price, closing costs and capital improvements, from the sale price, less closing costs (such as transfer taxes, brokerage and other closing fees). If you are no longer a resident of New York, but you occupied the apartment for two out the five years preceding the date of sale, you will not be obligated to make a capital gains tax payment until April of the year following the sale.

Sales By Foreign Citizens

If you are not a U.S. citizen or do not have permanent residence status (that is, have a green card), you will also be subject to the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"). As a result of an amendment to the FIRPTA Statute in 2015, if you are not a U.S. citizen, when the intended use of the apartment by the transferee is residential, a withholding payment to Internal Revenue Service ("IRS") will be required at closing equal to 10% of the purchase price, for transactions up to $1,000,000.00; and an amount equal to 15% of the purchase price, for transactions above $1,000,000.00. No withholding is required for transactions with a purchase price below $300,000.00. Although there is a procedure available to foreign citizens to apply to IRS, to have the actual amount of the payment determined, in most cases the determination by IRS will not be made in advance of the closing and the full FIRPTA payment will have to be made by the seller. If the seller is fortunate enough to have IRS issue what's called a "Withholding Certificate" prior to closing, the seller can make the payment required by the Withholding Certificate in lieu of the higher withholding payment required if no Withholding Certificate is obtained. In order to avoid a FIRPTA withholding, the seller will be required to sign a "Firpta Certification" at closing, certifying that the seller is not a "foreign citizen" within the meaning of the FIRPTA statute.

Review Renovations

A seller has often made substantial renovations to the apartment. Based upon the nature of the renovations, a filing with the New York City Department of Buildings ("DOB") may have been required, in addition to obtaining the consent of the cooperative or condominium in which the apartment is located. When a filing with the DOB has been made, all permits that have been filed with DOB have to be "closed" when the renovation is completed. Contractors and architects have a bad habit of failing to close permits at the end of a job. In many renovations, there is also a "Letter of Completion" that should be obtained after all the permits have been closed and other filings have been completed. A buyer's attorney, who is familiar with DOB procedures, may check the DOB website to determine whether there are any open permits and whether a Letter of Completion is required. If the discovery of open permits and the need for a Letter of Completion is not made until the buyer's attorney conducts due diligence, the closing of the sale may be delayed or the deal terminated. It is in the seller's interest to make these determinations as soon as possible, so that corrective action can be taken in advance of an accepted offer. A seller should contact his or her architect or contractor to confirm that all required paperwork was obtained in connection with the renovation. If the architect or contractor cannot be located, there are construction professionals who can assist with the research.

What Happens if the Seller Has Made an Unauthorized Renovation?

There is no easy answer for a seller when an unauthorized renovation has been made in an apartment. Depending upon the nature of the work, a seller may or may not be able to "legalize" the unauthorized improvement prior to closing. Hoping that the buyer will not find out about it can be a recipe for disaster. There are many closings that have not taken place due to a renovation that was not authorized by a co-op or condo Board or properly filed with DOB. A seller in this situation should seek the advice of his or her attorney as well as the counsel of a design professional to find a solution to the particular situation.

Locating Collateral

When a co-op is sold, the seller must deliver the stock certificate (the "Stock Certificate") evidencing the seller's ownership of the shares (the "Shares") allocated to the apartment, as well as the proprietary lease (the "Lease") appurtenant to the Shares, that gives the seller the right to occupy the apartment in question. If the seller has obtained financing in connection with the purchase of the apartment, the Stock Certificate and the Lease will be held by the seller's lender as collateral and will be delivered by the bank's attorney at the closing. If there is no financing, the seller should have possession of the Stock Certificate and the Lease and will be required to deliver same at closing. If the seller cannot locate the Stock Certificate and the Lease, that fact should be made known to the managing agent of the cooperative. The seller will be required to execute a "Lost Instruments Affidavit" at closing, so that the managing agent will be willing to issue a new stock certificate and proprietary lease to the new purchaser, even though the seller's Stock Certificate the Lease could not be located. There are fees incurred when a seller cannot locate the Stock Certificate and the Lease. In addition, some buildings will also require the seller to obtain a basic "Leasehold Title Insurance Policy", which can be costly, depending upon the purchase price. (For example, such a policy for a $1,000,000.00 sale, at present rates, will cost approximately $1,300.00.

Sometimes the seller's lender will lose the Stock Certificate and the Lease. Unfortunately, this will not be known for a number of weeks after the seller's attorney notifies the attorney for the seller's lender that the loan will be paid off at closing. Although a delay may be experienced, the seller's lender will eventually sign the Lost Instruments Affidavit and the closing will take place.

Satisfaction of Outstanding Loans

At closing, you will be required to pay off all outstanding loans that are secured by either the Stock Certificate and the Lease, if the apartment is a co-op, or secured by a lien against the apartment, if the apartment is a condominium. Your attorney will arrange for a "pay off letter" from your lender that will provide a "a pay-off figure" through the date of closing.

Do You Have an Outstanding Line of Credit?

If you have an outstanding line of credit, that is secured by an interest in the apartment, in addition to obtaining a pay-off letter from the lender, you will be obligated to "freeze" the line of credit prior to closing. A line of credit is "frozen" when the lender terminates the borrower's right to draw down under the line of credit. In order to evidence that the line of credit is frozen, the seller must obtain a letter from the lender confirming that the line of credit has been frozen and no further draws will be permitted under the line. This "freeze" letter can take a number of weeks to obtain and should be requested as soon as the contract has been signed by both parties.

When the Seller is an Estate

In the event that the seller is deceased, ownership of the apartment will be held by an "Executor", in the event that the seller died with a Last Will and Testament, or by an "Administrator", if the seller died without a will. In each case, the personal representative of the seller's estate must be appointed either Executor or Administrator by various filings with the Surrogate's Court in the county in New York City where the seller resided at the time of his or her death. If the seller died outside of New York, and if the Seller's probate filing was submitted in a jurisdiction outside of New York State, there may be additional probate steps necessary in the Surrogate's Court where the apartment is located. The personal representative of the seller's estate is well advised to check with real estate counsel to determine what documentation will be required in order to transfer the shares evidenced by the Stock Certificate and the Lease. Each building may have slightly different requirements. As a result, it makes sense for the seller's broker to check with the managing agent for the building to determine the documentation that will be required in order to transfer the shares. Many closings have been delayed due to the fact that documents required from the seller's estate were not obtained in a timely manner. When the apartment is a condominium, review of the estate documents will be undertaken by the purchaser's title company.

What Documents Will be Required?

Although as mentioned above, requirements may vary from building to building, in most cases, a seller's estate should expect to provide the following documentation (which documents will also be required by a title company:

Original Letters Testamentary or Letters of Administration, dated no later than sixty days prior to the closing date.

A Certified Copy of the Will

An original death certificate

A New York State Release of Lien (Form ET 117).

Evidence that there is no federal estate tax due or a closing letter from Internal Revenue Service showing the amount of tax due and that the tax has been paid in full.

An "Affidavit of Debts and Domicile", by which the Executor or Administrator swears under oath as to the domicile of the deceased seller at the time of death and confirms that the assets of the estate are sufficient to satisfy all obligations of the estate, including payment of estate taxes. .

In the event that the deceased seller was not a New York resident, an estimated capital gains tax payment to New York State will also be required at closing

A Cause for Delay

Estate attorneys often assume that a co-op will not require a New York State Release of Lien (Form ET 117), as cooperative shares are considered personal property and not real estate. As managing agents almost always require this release in order to transfer the shares, the legal representative  of the seller's estate should notify the estate attorney that this document will be required, as it can be obtained at any time and well in advance of an accepted offer. If the ET 117 is not applied for until after the contract is signed, it can delay the closing for a number of weeks and even months, as New York State takes an extraordinarily long time to issue this document.

Does the Executor Have Authority?

A problem may arise if the seller devised the cooperative shares or condominium apartment under the will to a specific person, rather than directing the Executor to sell the shares or the apartment and add the proceeds to the seller's residuary estate. The seller's legal representative is well advised to review the terms of the will with the estate's attorney to insure that the Executor has the right to sell the shares or the condominium.

When the Seller is a Trust?

If ownership of the apartment is held by the trustees of a trust, the managing agent will require the trust documents to be reviewed by the co-op's attorney to determine that the trustees have the authority to transfer the shares. Fees for review of the trust documents can exceed $2,000.00, depending upon the law firm retained to review the documents. When the apartment in question is a condominium, the review of the trust agreement will be undertaken by the purchaser's title insurance company for the same purpose. In each case, the trustees of the trust will be required to submit an "Affidavit of Trustee" at the time of closing in which the trustees certify that the trust is in full force and effect, has not been amended, and allows for the sale of the apartment by the trustee.

Can an Executor, Administrator or Trustee Execute a Power of Attorney?

In today's practice, sellers often do not attend the closing and give their attorney or another party a "power of attorney", by which the seller authorizes such party to act as the seller's agent in connection with the sale. The form of power of attorney must be submitted for review to the managing agent or to the purchaser's title insurance company, as the case may be, for approval in advance of the closing. At closing, the original power of attorney must be delivered, together with a legible current photo ID for the seller. Executors, administrators and trustees, do not have the ability to attend a closing by power of attorney, as such parties are "fiduciaries" and must be present at the closing. In some cases, a trust agreement, for convenience and privacy purposes, may designate a "title trustee" that allows the trust's attorney or other advisor to attend the closing in lieu of the actual fiduciary. When a fiduciary does not live in New York City, there can be scheduling conflicts when it comes time for the closing. The parties should consider any travel logistics for the fiduciary when the contract is being negotiated.

When the Seller is an Entity

When the seller is a corporation, limited liability company or partnership, there will be other documents that will be required for closing. Although this issue comes up primarily with condominium sales, there are a few co-ops that permit ownership by an entity. With a condominium sale, the purchaser's title company will require delivery of the organization documents for the entity, as well as any existing shareholder, operating or partnership agreements. In addition, the selling entity will also have to provide a "written consent" of the owners, directors or managers of the entity, evidencing the authority to sell the apartment and authorizing particular parties to act on behalf of the entity. Corporate and limited liability company sellers will also have to provide good standing certificates from New York State, showing that the entity is up to date on all required filings. The title company will also conduct a search to determine if any tax filings are outstanding. Any outstanding tax liens will have to be satisfied by the seller at closing.

Avoid Closing Chaos

One of the most difficult aspects of residential real estate these days is to get both sides to agree on an acceptable closing date. Parties often fail to disclose an intention to delay the closing by exercising at the last minute a so called "right to adjourn" for 30 days. Whenever a party does not disclose an intention not to close on or about the agreed upon closing date, chaos always ensues. Although there is a right to a reasonable adjournment (not always 30 days), parties should avail themselves of this right only when absolutely necessary. If a seller has specific requirements for a closing date, the desired date should be clearly communicated to the seller's attorney. Sellers should be wary of a purchaser who promises to close "in 30 days". Even in "all cash" transactions, a seller should expect the transaction to take 45 to 60 days to complete, when you factor in the co-op Board approval process. In a condominium "all cash" transaction, it is possible to close on an accelerated timeline, if the Board of Managers issues its Waiver of the Right of First Refusal on an expedited basis. In my experience, residential transactions rarely close in 30 days or less. If the purchaser is obtaining financing, the closing will probably not take place for 90 days to accommodate the loan underwriting process. Residential financing has become exceedingly complicated, irrespective of the purchase price. Sellers should understand that despite the best efforts of the parties, the purchaser's lender can delay the closing, often inexplicably.

Contract Contingencies

There are three contingencies that a seller will have to accept as a part of selling his or her apartment. If the apartment is a co-op, unless the seller is a sponsor or has the rights of a sponsor, the sale will be subject to the approval of the Board of Directors of the co-op. That means that the purchaser's application for purchasing the apartment can be denied without explanation. Co-op Boards have been known to act inappropriately or even violate the laws against discrimination, but those cases are the exception and not the rule. It serves the seller well for the purchaser whose offer is accepted to be an appropriate candidate for the building in question. Secondly, if the transaction is "subject to financing", the purchaser can cancel the contract if the purchaser is unable to obtain a loan commitment from an "Institutional Lender" within the period of time set forth in the contract (usually 30 to 45 days). The purchaser is obligated to apply for the loan in good faith and there are certain filing deadlines that have to be satisfied by the purchaser. If the purchaser is unable to obtain a loan commitment letter, the deposit will then be returned and the contract will be canceled. Although disputes can arise as to whether the purchaser acted in good faith, at significant expense to both parties, in the vast majority of cases, the seller relents and the deposit is returned. When the market strongly favors the seller, purchasers are often forced to sign "all cash contracts", even though the purchaser is seeking financing. That maneuver shifts the risk of the purchaser's inability to obtain financing from the seller to the purchaser. Even in seller driven markets, many purchasers will not go forward without a financing contingency.

The Funding Contingency

Finally, there is also a contingency that finds its way into contracts that contain a financing contingency. Since the financial crisis of 2008, banks have a bad habit of issuing a loan commitment letter with conditions, and then weeks after the commitment has been issued, decide not to underwrite the loan and withdraw the financing. As a result, a purchaser's attorney often asks for a "funding contingency" in the event a lender changes its mind for reasons that do not involve the purchaser. The primary reason for the withdrawal of funding is the lender's determination that the co-op or condominium does not satisfy the lender's underwriting guidelines. As lenders often sell the loans, if the building does not meet certain financial baselines, the loan may not be transferable. When that determination is made, the lender will withdraw its financing and the deal will be terminated. With larger loans, the lender may hold the loan in "portfolio", which means that the lender will not sell the loan. In that case, the building's finances may not present as significant an issue as in other transactions.

What Should A Seller Do?

In most buildings, a seller will be able to determine through a call to the managing agent, whether the building has experienced any problems with bank financing. If problems have occurred, it is better for the seller to be aware of the issues before the apartment is marketed. In those cases, it may be necessary for a seller to pursue all cash purchasers.

No Other Contingencies Should Be Permitted

Except as described above, a seller should not permit any other contingencies in the contract of sale. That would include a contingency relating to the sale of another property by the purchaser, a contingency that requires advance approval of proposed alterations and a contingency that the apartment be appraised at a certain value. There are special situations where a specific additional contingency is agreed to by the seller, but often occurs in a transaction where the seller has had difficulty selling the apartment and the apartment has languished on the market for many months.

Multiple Contracts

Unlike other jurisdictions, the basic New York residential contract of sale, does not permit the purchaser an inspection period after the contract is signed. As a result, the purchaser's inspections and other due diligence must be conducted prior to the execution of the contract. In practice, this feature allows the seller to continue showing the apartment while the purchaser is working through the due diligence process. In a hot real estate market, many a purchaser has lost a deal while his or her attorney was conducting the appropriate due diligence. That due diligence period can take several weeks, so the purchaser is at risk of the seller finding a better deal. That's just the way it is in New York. Sometimes brokers will ask the seller's attorney to send out multiple contracts when more than one acceptable offer has been received. Attorneys will grudgingly comply with the request, but there is always the possibility of losing both deals when the seller tries to work the system. That being said, the seller has no obligation to accept the purchaser's signed contract and delivery of the deposit check. The contract is not binding on the seller until it has been signed by the seller. If a better offer comes in before the seller signs the contract, the seller can accept the preferred offer without liability to the party who has submitted a signed contract.

Selecting an Attorney

There are many choices for representation in connection with the sale of an apartment in New York City. As the process of selling an apartment has become more complicated for a myriad of reasons, there is no "one price fits all" answer to the question "What will you charge for the closing?" Some attorneys charge by the hour and some attorneys charge flat fees for a closing. The appropriate fee for a particular co-op or condo sale has to be arrived at after discussion with the client as to the terms of the sale and possible issues that might arise during the transaction.

Residential Reality: Stay Ready, So You Don't Have to Get Ready

There are many issues to be considered as you ready your apartment for sale. As there is always a lead time before the apartment goes on the market, take advantage of that lead time, and resolve any issues that might impact your ability to sell your apartment. Good luck!