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LEGAL TIPS & TRENDS

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NATIONWIDE TIPS & TRENDS


THE FIRST TIME HOME BUYER CREDIT

First time home buyers can claim a credit of $8,000.00 for a home purchased before December 1, 2009.

How is a credit different from a deduction?

If your tax return shows $8,000.00 in taxes due and you have an $8,000.00 tax credit you pay $0.00 in taxes. If your tax return shows $8,000.00 in taxes and you have an $8,000.00 deduction and a tax rate of 25%, $2,000.00 is reduced from your tax bill (i.e. 25% of $8,000.00). Your tax would be $6,000.00 ($8,000.00 - $6,000.00)

Clearly a credit is far better than a deduction. A credit is real money.

IS YOUR BUSINESS FACING A FINANCIAL HARDSHIP?

The U.S. Small Business Administration (SBA) announced in a news release on May 18, 2009 that: "Beginning on June 15, 2009... [it] will start guaranteeing America's Recovery Capital (ARC) loans... up to $35,000.00 available to help make their principal and interest payments... ARC loans are interest-free to the borrower, 100 percent guaranteed by the SBA, and have no SBA fees associated with them." ARC loans will be available as long as funding is available or until September 30, 2010.

 

NEW YORK TIPS & TRENDS

SELLING YOUR HOME IN NEW YORK

  • The Real Estate Broker

One of the first decisions you will have to make it whether or not to retain a retain a real estate broker.

Real estate brokerage commissions usually range in the areas of 4% to 6% and are subject to negotiation with the broker. The broker usually has to split his or her commission with his or her sales person. If the property is listed on the multiple listing service (hereinafter discussed), the commission may be split between the listing broker (the one you list the property with) and the selling broker (the firm that procures the buyer) and one or more sales people.

In New York you may be liable for a commission even if the transaction does not close. In New York, unless the parties agree otherwise, the broker earns his or her commission when the broker locates a buyer, ready, willing and able to close under the terms of the listing agreement. Thus, if there is such a buyer, you are liable for the commission even if there is no closing for a number of reasons such as no valid Certificate of Occupancy, an illegal deck, bad title or the buyer's default. For this reason, in New York, the listing agreement should provide that the broker's commission "shall be payable only when, as and if title closes and out of the proceeds of the sale."

  • The Multiple Listing Service

The multiple listing service is a service maintained by a local board of realtors. Your broker (the listing broker) with your consent or at your request can place your home in the multiple listing service. When that is done, the listing service will be made available to all other broker members of the multiple listing service. Under the rules of the Staten Island Board of Realtors, the commission would be split between the listing broker and the selling broker as may be agreed upon between them.

Because of the likelihood of the commission being split between the listing broker and the selling broker the total agreed upon commission might be greater when you go into the multiple listing service but you also may get much more exposure.

  • Types of Listings

Frequently the broker will try to negotiate an exclusive listing with you for a specified period of time. You should discuss with your attorney the length of any such exclusive arrangement.

If the broker does not do his or her job you can make other arrangements. If you are happy with the broker you can always extend the initial exclusive.

There are two types of exclusives, i.e., an exclusive agency and an exclusive right to sell. Under the exclusive agency arrangement, you can sell the property yourself without being obligated to pay a commission. If the arrangement is an exclusive right to sell, you are responsible to pay the commission even if you sell the property yourself.

Every listing agreement should be reviewed by your counsel to avoid these and other potential problems such as automatic renewal provisions, etc.

Retaining a broker to handle your transaction contains many advantages that you will be able to take advantage of. The broker knows the local market, will be able to prequalify buyers and act as an insulator between the buyer and seller over contentious issues and can often be a very worthwhile investment.

  • The Binder

A good lawyer will try to prevent a binder from being signed and a good broker will always try to get a binder signed.

The "binder" has been a fertile source of much litigation. A binder can be construed to be a binding contract.

The elements of a binding contract are as follows:

(1) It is in writing.

(2) It is signed by the party against whom enforcement is sought.

(3) Must name the parties.

(4) Must identify the property.

(5) Must state the price.

(6) Must include the promise of the party who signed to sell or purchase.

Cases have held that modifications of the binder such as "subject to a more formal contract" do not relieve a party from contractual liability.

  • Property Condition Disclosure Act

Under New York law the seller of a residence must provide the purchaser with a completed property condition disclosure form as required by statute. The questions are frequently vague or indefinite.

The seller in lieu of providing the completed statement may give the purchaser a $500.00 credit toward the purchase price in lieu of completing the form. By doing so, the seller relieves himself or herself from any liability under the Act other than that caused by his or her fraud.

  • Income Taxes

An individual may exclude from income up to $250,000.00 of gain ($500,000.00 on a joint return) on the sale of a principal residence under the following conditions:

1. The exclusion may not be used more than once every two years.

2. The taxpayer(s) occupied the property as a principal residence at least two of the previous five years.

3. There are separate rules for vacation homes and properties not exclusively occupied as a residence, e.g., two families.

Properties other than a residence may offer opportunities for tax advantages, such as tax free exchanges, installment sales, etc.

  • The Attorney for the Seller

The seller's attorney at a minimum has the following obligations:

(1) To insure that the seller is not obligated to unwarranted brokerage claims.

(2) To negotiate and prepare the contract of sale.

(3) To clear ordinary title objections.

(4) To prepare closing documents:

- The Deed.

- The New York City Real Property Transfer Tax Return - 1% on sales of 1, 2 or 3 family residential property of $500,000.00 or less. 1.425% on sale of 1, 2 or 3 family residential property over $500,000.00. For other real property, commercial, etc. 1.425% on sales of $500,000.00 or less and 2.625% on properties over $500,000.00 - all paid by the seller unless the contracts says otherwise.

- The New York State Real Estate Transfer Tax Return (TP-584) - $4.00 per thousand of the purchase price. If the price is in even thousands.

- The Non-Multiple Dwelling Affidavit or in the case of multiple dwellings, the Multiple Dwelling Registration form.

- The Smoke Detector Affidavit in cases of 1 or 2 family dwellings.

- New York State Equalization Form 5217.

- If a non-resident, Form IT-2663 Income Tax Withholding form.

(5) Procure payoff figures for the seller's exiting mortgage(s).

(6) Attend the closing.

 

NEW JERSEY TIPS & TRENDS


SELLING YOUR HOME IN NEW JERSEY

  • The Real Estate Broker

One of the first decisions you will have to make it whether or not to retain a retain a real estate broker.

Real estate brokerage commissions usually range in the areas of 4% to 6% and are subject to negotiation with the broker. The broker usually has to split his or her commission with his or her sales person. If the property is listed on the multiple listing service, the commission may be split between the listing broker (the one you list the property with) and the selling broker (the firm that procures the Buyer) and one or more sales people.

  • The Multiple Listing Service

The multiple listing service is a service maintained by a local board of realtors. Your broker (the listing broker) with your consent or at your request can place your home in the multiple listing service. When that is done, the listing service will be made available to all other broker members of the multiple listing service. The commission would be split between the listing broker and the selling broker as may be agreed upon between them.

  • Attorney Review

If the real estate agent prepares the contract, there will be a three-day attorney review period once the real estate contract is signed and delivered to the Buyer and Seller. The real estate contract prepared by the agents is required by New Jersey regulation to have the following attorney review provisions:

1. Study by Attorney:

The Buyer or Seller may choose to have an attorney study this contract. If an attorney is consulted, the attorney may complete his or her review of the contract within a three-day period. This contract will be legally binding at the end of this three-day period unless an attorney for the Buyer or the Seller reviews and disapproves of the contract.

2.  Counting the Time:

You count the three-days from the date of delivery of the signed contract to the Buyer and Seller. You do not count Saturdays, Sundays, or legal holidays. The Buyer and the Seller may agree in writing to extend the three day period for the attorney review.

3. Notice of Disapproval:

If an attorney for the Buyer or the Seller reviews and disapproves of this contract, the attorney must notify the Broker(s) and the other party named in this contract within the three-day period. Otherwise this contract will be legally binding as written. The attorney must send the notice of disapproval to the Broker(s) by certified mail, by telegram or by delivering it personally. The telegram or certified letter will be effective upon delivery to the Broker's office. The attorney may but need not also inform the Broker(s) of any suggested revisions in the contract that would make it satisfactory.

Therefore, it is important to act promptly so that the three-day attorney review period does not expire before discussing with your attorney.

During attorney review, the Buyer's and Seller's attorneys generally negotiate provisions such as the contingencies, the inspections, and any additional provisions required which may be property specific (such as capping Seller's liabilities for certain representations) to strengthen the Seller's position in the transaction.

If a contract is prepared by an attorney (as opposed to an agent), the contract is binding upon execution, and there is not an attorney review period. Therefore, reviewing the contract with your attorney before you sign a contract is critical.

  • The Attorney for the Seller

The Seller's attorney generally performs the following:

1. Negotiates the contract of sale during attorney review.

2. Negotiates the home inspection issues raised if there is a home inspection contingency.

3. Clears ordinary title objections, such as paying off your mortgage at closing.

4. Prepares closing documents:

- The Deed.

- Affidavit of Title.

- Affidavit of Consideration, if applicable.  (At closing, there is a transfer tax paid by the Seller. To claim a full or partial exemption, an Affidavit of Consideration must be completed. Examples of complete exemptions include, but are not limited to, transfers between husband and wife, civil union partners, or parent and child. Examples of partial exemptions include, but are not limited to, being a senior (62 or older), being blind or being disabled).

- Seller's Residency Certification/Exemption (Form GIT/REP-3) or Nonresident Seller's Tax Declaration (GIT/REP-1), as applicable.

- 1099 or Certification, as applicable.

5. Procures payoff figures for the Seller's existing mortgage(s).

6. Attends the closing.

  • Income Taxes

An individual may exclude from income up to $250,000.00 of gain ($500,000.00 on a joint return) on the sale of a principal residence under the following conditions:

1. The exclusion may not be used more than once every two years.

2. The taxpayer(s) occupied the property as a principal residence at least two of the previous five years.

3. There are separate rules for vacation homes and properties not exclusively occupied as a residence, e.g., two familes.

Properties other than a residence may offer opportunities for tax advantages, such as tax free exchanges, installment sales, etc.

They may also have other important tax consequences, such as recapture of depreciation, etc.

 

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