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Prestige Title Agency, Inc. provides Commercial and Residential Title Services Nationwide.  For more information, please contact Anthony Chiellino at (212) 651-1200 or achiellino@prestitle.com.

Fall 2008 Issue 1

PRESTIGE TITLE AGENCY, INC.

Prestige Title eNews
Fall 2008 

Greetings!
Welcome to the first issue of Prestige Title eNews!  We at Prestige Title pride ourselves on being a valuable resource to the real estate and legal communities by providing expert consultative support.  This newsletter will help us disseminate useful industry information to a wider audience.  Please feel free to pass this along. 
 
If you have any questions or would like further information regarding any of the items in this newsletter, please contact Michael Alfieri, Esq. at (212) 651-1200 or malfieri@prestitle.com.
 
Also, if there are any topics that you would like us to include in future newsletters, please feel free to e-mail us with suggestions at info@prestitle.com.
 
We look forward to hearing from you!
 
- Anthony Chiellino, President
Survey Basics to Remember and Types of Surveys 
You are representing a client in the sale, purchase or mortgage of real property and the client, title company or opposing counsel has forwarded you a copy of the survey. Now that you have the survey in front of you, what are some of the basics you should look for? Here are some quick pointers to keep in mind:
  • The survey must be legible - an obvious statement, but very often the survey may be difficult (if not impossible) to read.
  • You need a complete copy of the survey - that is, an entire copy of the survey and not just a section or portion.
  • The survey must have the name, address, telephone number, license number and seal of the surveyor.
  • The survey must be dated.  There should be a date of the original survey and dates of all revisions/updates, if any.  In other words, there will be several dates on the survey - the date the field work was done, the date the map was prepared and the date of any subsequent revisions/updates.  In referencing the date(s) on the Survey Reading, title companies will use the date the field work was done and then reference any subsequent revisions or updates.
  • The survey should provide a North point indicating approximate North - i.e. a North arrow.
  • The survey needs to be certified - that is, certification of the survey must be made to the specific parties involved in the transaction - i.e. the purchaser, the lender and the title company. An existing or old survey may have certifications running to the prior or current owner, lender and title company.
  • Determine if there is any discrepancy between the survey description, the record (legal/deed) description and the tax map.
  • Confirm that the description on the survey forms a mathematically closed parcel and conforms to the physical evidence on the land.
  • The survey may also show, record and measure distances to the nearest corner or intersecting street or other monumentation.
  • The survey should also show the scale of the survey - e.g. 1 inch = 40 feet.
 
TYPES OF SURVEYS
In addition, surveys can come in a variety of forms.  All surveys are not the same and are not created equally.  It is important to remember that there are different types of surveys prepared with different standards for different situations. The most common form of survey and the form most readily accepted by title companies for insuring transactions is the Title Survey or ALTA Survey.
 
Title Survey
This survey is the most commonly used form in residential and some commercial transactions.  It will show the dimensions and angles of the property, exact location of boundary lines and locations of improvements, easements and encroachments, if any.  It may also include the width of any streets that the premises fronts on.
 
ALTA Survey
This survey contains the American Land Title Association (ALTA) standards adopted in conjunction with the American Congress on Surveying & Mapping (ACSM) and the National Society of Professional Surveyors, Inc. (NSPS) 2005 Minimum Standard detail requirements for ALTA/ACSM Land Title Surveys.  The new 2005 Minimum Standards became effective January 1, 2006, replacing the 1999 Minimum Standards.  An ALTA survey is often required for commercial transactions and is very detailed. It is generally much more expensive than a Title Survey and takes longer to prepare.
 
To read about additional types of surveys and descriptions of each, see the list to the right or click here.
 
If you have any questions about this article or would like further information, please contact Michael Alfieri, Esq at (212) 651-1200 or malfieri@prestitle.com.
 
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In This Issue
Survey Basics & Types of Surveys
NYS Tax Warrants & Real Property
Recent News Items
Announcements
Did you know that we also have a New Jersey office?  Please contact Anthony Chiellino for details at (212) 651-1200 or achiellino@prestitle.com.
Quick Links
Join our Mailing List!
Types of Surveys (cont.)Surveys 

Architectural Survey
This survey is generally used by an architect or engineer to assist the design of a building or addition.  It will show the plans and specifications of the building required to obtain necessary building permits and certificate of occupancy.  This survey will generally show the legal description of the premises, but does not include specific information as to encroachments, projections or variations.  Title companies will generally not agree to use this form of survey.  
 
Foundation Survey
This survey will only show the location of the foundation of the building in relation to the legal description.  This survey is generally used in building loan/construction matters and to obtain building permits.  Title companies will generally not agree to use this form of survey.
 
Perimeter Survey
This survey is a survey of the perimeter of the property only, without reference to improvements.  It will not show buildings, encroachments or easements.  Title companies will generally not agree to use this form of survey.

Topographical Survey
This survey is a survey of the perimeter of a parcel of land and in some cases the interior walls, buildings and fences.  It will disclose ground elevations, sewer mains and location of utilities and will be used by an architect or engineer for use in constructing a building or renovating an existing structure.  Title companies will generally not agree to use this form of survey. 
 
Subdivision Map
This survey is a survey map of the perimeter of a large tract of land that may ultimately be sub-divided into separate or building lots.  The survey will not usually show details of all physical attributes of a given parcel.  This map may be submitted and filed in the County Clerk's Office and may contain information as to covenants, easements and restrictions that will affect all of the lots or parcels shown on the map.  Title companies will generally not agree to use this form of survey. 
 
As Built Survey
This survey is a detailed survey of a building or other improvements and its relation, as built, to the building plans or specifications.  This survey is detailed but only as to the project and generally does not address boundary locations or title issues.  Title companies will generally not agree to use this form of survey.
 
Tape Location Survey
This survey is made without the use of measuring instruments; the surveyor simply uses a "tape" measure to determine the metes & bounds of the premises.  This survey is used for general reference of building location in regard to boundary lines - not much value.  Title companies will generally not agree to use this form of survey.
 
Windshield Survey
The survey is based on a drive-by observation of the property.  This survey is not reliable and Title Companies will not agree to use this form of survey.

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New York State Tax Warrants and Real Property 

Just as a refresher - at one time, in April of 1988, the Counsel's Office of the New York State Department of Taxation and Finance issued an opinion ruling that New York State Tax Warrants filed by the Department against real property located in the county where the warrant was docketed were governed by common law and thus had a duration of twenty (20) years and not the ten (10) year limitation imposed by Section 5203(a) of the CPLR on money judgments.
 
On July 8, 1997 new Section 174-a of the New York State Tax Law was enacted, which provides that the ten (10) year statute of limitations to enforce a money judgment against real property is also applicable to New York State Tax Warrants filed by the New York State Department of Taxation and Finance.  Hence, the duration of a New York State Tax Warrant as a lien against real property is ten (10) years from the date it is docketed (the perfection date), unless of course it is renewed.  The amendment does not address and is silent on the issue of personal property, and therefore New York State Tax Warrants can claim a lien and are effective against personal property, which includes a Cooperative Unit Interest, for twenty (20) years from the date of assessment.
 
If you have any questions about this article or would like further information, please contact Michael Alfieri, Esq at (212) 651-1200 or malfieri@prestitle.com. 
 
Recent News Items 
Described below is a summary of recent newsworthy items that you may find of interest.
 
ADVERSE POSSESSION
A bill revising the Adverse Possession Law in New York State was signed by Governor David Paterson on July 8, 2008. This bill was in direct response to a Court of Appeals decision in Walling v. Przybylo (7 N.Y.3d 228).  In that decision, the Court found in favor of an adverse possessor's claim and stated that "actual knowledge that another person is the . . .owner, does not . . . defeat a claim . . . by an adverse possessor." Chapter 269 of the Laws of 2008 amended provisions of the Real Property Actions and Proceedings Law (RPAPL) as to adverse possession and added a new section, Section 543 to the RPAPL.  It requires the "adverse possessor to have a reasonable basis for believing that" the property in question "belongs to the possessor."  It also provides for the existence of DeMinimus non-structural encroachments (for example - fences, hedges, shrubbery, plantings, sheds, non-structural walls), acts of lawn mowing or similar maintenance across the boundary line of adjoining landowner's property.  This law took effect on July 8, 2008 and applies to all claims filed on or after July 8, 2008.
 
MORTGAGE FORECLOSURES
On August 5, 2008, Governor Patterson signed into law Chapter 472 of the Laws of 2008.  This legislation was enacted in response to the mortgage foreclosure crisis in New York State.  The purpose of  the legislation was to provide protection and foreclosure prevention opportunities to homeowners in danger of losing their homes.  In addition, it tightens and strengthens the Banking Law and establishes standards and regulations over lenders, mortgage brokers and mortgage loan servicers to prevent homeowners/borrowers from being placed in unfavorable home loans.  It further provides strict criminal penalties for violations of these provisions as well as providing for possible defenses to a foreclosure action.
 
SUFFOLK COUNTY RECORDINGS
The Suffolk County Clerk is rejecting any document or transfer tax form submitted for recording when a change has been made to the document or the transfer tax return form without the initials of the party(ies) to the instrument.

INCREASE IN RECORDING FEES
The following NYS counties have recently announced an increase in their recording fees:
 
Suffolk, Nassau, Columbia, Putnam, Essex, Warren, Rockland, Clinton, Franklin, Tompkins, Ulster & Orange
 
(For effective dates in each county, see the appropriate county websites or contact Michael Alfieri, Esq. at (212) 651-1200 or malfieri@prestitle.com.)
 
FIRPTA REVISIONS
Section 1445 of the Internal Revenue Code (IRC) provides that a transferee (buyer) of a US real property interest must withhold tax if the transferor (seller) is a foreign person.  Pursuant to IRC Section 1445(b)(2), no withholding is required if the transferor (seller) furnishes to the transferee (buyer) a Non-Foreign Affidavit stating, under penalty of perjury, the transferor's United States taxpayer identification number and that the transferor is not a foreign person.  Section 1445(b)(9) was added to the IRC and became effective on July 30, 2008.  It provides an alternative procedure for furnishing Non-Foreign Affidavits.  The procedure added by this section allows a seller to furnish the Non-Foreign Affidavit to a "qualified substitute" instead of the buyer so long as the qualified substitute furnishes a statement to the buyer stating, under penalty of perjury, that the qualified substitute is in possession of the Non-Foreign Affidavit.  A qualified substitute is defined as the person (including any attorney or title company) responsible for closing the transaction other than the seller's agent and the buyer's agent.
 
If you have any questions about this article or would like further information, please contact Michael Alfieri, Esq at (212) 651-1200 or malfieri@prestitle.com.
 

Prestige Title Agency, Inc. provides Commercial and Residential Title Services Nationwide.  For more information, please contact Anthony Chiellino at (212) 651-1200 or achiellino@prestitle.com.

  15 W. 39th St., 10th Fl. New York, NY 10018 (212) 651-1200 Fax (212) 651-1201
Member of New York State Land Title Association Member of American Land Title Association