GENERAL PRACTICES
G-1 BUILDING DEPARTMENT NOTICE OF PENDENCY (Lis Pendens)
A Notice
of Pendency to enforce Building Department violations may be
disregarded if a search shows that the violations which are
the subject of the notice of pendency are no longer pending.
G-2 DEED FROM FIDUCIARY - CONSIDERATION
Where a deed from a fiduciary does not recite the actual
amount of consideration paid, no exception as to the
adequacy of consideration needs to be raised if:
A. The
deed is on record for more than 10 years; or
B.
There is other evidence or record of the payment of valuable
consideration including, without limitation, the
simultaneous execution of a purchase money mortgage or the
payment of transfer taxes.
G-3 DELIVERY QUESTION
Where
there is a time lapse between the date of a deed and the
date of its recording, no objection needs to be raised where
the deed has been on record for more than 10 years. If the
deed has been on record for 10 years or less, the period
search in a Surrogate's office should
be completed against the grantor from the date of the
instrument to the date of recording in the county where the
grantor resides and in the county where the property is
situated. If no death was found then the question should be
passed unless the grantee, or some one connected with him,
was still in title and more definite information could
therefore be obtained, or unless the death of the grantor is
definitely known.
The
question of delivery should not be raised where the interval
between the date of the deed and the recording date thereof
was less than 30 days unless there was affirmative knowledge
of the death of the grantor prior to recording. Under this
30 day period no Surrogate's search need be made.
The
question of delivery should not be raised where the interval
between the date of the deed and the recording date thereof
was greater than 30 days where the public record evidences a
purchase money mortgage to an institutional lender or the
seller(s) which is dated contemporaneously with the deed.
G-4 EXPIRED CITY OF NEW YORK UNSAFE BUILDING NOTICE OF
PENDENCY (Lis Pendens):
In the
City of New York, an Unsafe Building Notice of Pendency
filed for more than 1 year may be passed if:
A.
Within 1 year from its filing a final judgment has not been
entered in said proceeding directing the demolition of the
structure; and
B.
Searches have been made for the period of 1 year from the
date of filing of the Unsafe Building Notice with noting
found.
G-5 FINANCING STATEMENTS UCC-1 (s)
Financing Statements, other than a financing statement filed
against a Cooperative Interest in a Cooperative
Organization, may be passed where they are on file for more
than 5 years and there has been, was a change of ownership,
or there will be a change at closing. Where, however, the
transaction is to insure a mortgage and there is to be no
change of ownership, then the Financing Statements should be
excepted unless they are on file for more than 5 years and
30 days and have not been renewed.
Exception: Financing statements filed against a Cooperative
Interest in a Cooperative Organization prior to July 1, 2001
are effective until June 30, 2006. Financing statements
against a Cooperative Interest filed on or after July 1,
2001 with a Cooperative Addendum, or a financing statement
filed prior to July 1, 2001 which is amended after July 1,
2001 by the filing of a Cooperative Addendum, are effective
for 50 years.
G-6 INFANTS, INCOMPETENTS-DEED BY
Deeds
executed by guardians, committees or attorneys in fact in
behalf of their respective wards, incompetents or
principals, instead of in their names by such
representatives should not be deemed an objection to title
where the instrument recites the source of authority for the
act and the instruments have been properly indexed on the
record against the respective infant, incompetent or
principal.
G-7 LIMITED PARTNERSHIP
A. When
a limited partnership formed under Article 8 of the
Partnership Law takes title to real estate, the failure to
commence or to complete the publication required under that
Article before title passes to the partnership may be
disregarded if the publication is ultimately commenced and
complete.
B. When
a limited partnership formed under Article 8-A of the
Partnership Law takes title to real estate, the failure to
commence or to complete the publication required under that
Article may be disregarded.
G-8 MERGED MORTGAGE & FEE
A
mortgage may be disregarded where the mortgage and fee title
came into the same ownership of record more than 10 years
ago without any recital of non-merger, where such owner is
no longer in title and where the chain of title subsequent
to the original common ownership of the fee and the mortgage
contains no recital of, or reference to, such mortgage.
Proof is also to be taken from the last owner that no demand
has been made for payment, that no payment has been made of
principal or interest, and that such last owner has not
acknowledged the debt.
G-9 NOTICE OF PENDENCY OPEN MORTGAGE OR MECHANICS LIEN
DISCHARGED
If a
foreclosure judgment has not been entered or, if entered,
was entered more than six years ago, a receiver has not been
appointed or, if appointed, has been discharged by court
order, and the mortgage or mechanic's lien has been
satisfied prior to the pending transaction, the notice of pendency filed in an action to foreclose the mortgage or
mechanics lien may be disregarded.
G-10 NOTICE OF PENDENCY UNSAFE BUILDING VIOLATION (Lis
Pendens)
For an
unsafe building violation, if the violation for which the
notice of pendency was filed is no longer in effect and
title has been derived from a conveyance by the City of New
York, which acquired title pursuant to an in rem tax
foreclosure subsequent to the filing of the notice of
pendency, the notice of pendency may be deemed merged and
not be an objection to title.
G-11 PUBLICATION OF JUDICIAL SALES IN THE FIVE COUNTIES
OF NEW YORK CITY OR NASSAU COUNTY SALES IN NEW YORK LAW
JOURNAL
When a
Supreme Court Justice in the five counties of New York City
or Nassau County designates the New York Law Journal as a
paper for publication for the judicial sale of property in
such county or where the Surrogate of the five counties of
New York City or Nassau County designates the New York Law
Journal as a paper for publication of notices under the
Surrogate Court Procedure Act for the publication of
Surrogate Court citations (with the exception of notices
under Section 1801 of the Surrogate Court Procedure Act)
publication should be deemed publication in a proper
newspaper.
G-12 SHERIFF'S EXECUTION SALES-PRIOR JUDGMENTS
No
objection should be raised to an insured title which has
come through a sheriff's execution sale provided that the
judgment under which the sale was had was obtained by
personal service, by actual delivery to the defendant, there
were no other judgment creditors, no other subordinate liens
at the time of the execution sale, that the owner at the
time of the execution sale was the debtor, and the execution
sale has been properly brought and the purchaser under such
sale or his successor in title is in possession.
G-13 STOCK REPLACED BY REAL ESTATE
When a
custodian or general guardian holds stock in a corporation
for the benefit of an infant and the corporation in
liquidation conveys to the custodian or guardian an interest
in real property represented by his proportionate share, the
custodian or guardian can sell such real estate interest
without securing a court order to sell. The same rule is
applicable where an administrator or executor of an estate
holds stock in a corporation which is liquidated and an
interest in real estate replaces stock in the hands of the
administrator or executor.
G-14 TAX SALES-RIGHT OF RE-ENTRY
In a
title made through a tax sale or through a foreclosure of a
tax lien, by an In Rem Proceeding or otherwise, a right of
re-entry created 10 years prior to such tax proceeding may
be passed even through the taxes in question accrued
subsequent to the instrument reserving the right of re-entry
and even though the right of re-entry was reserved as a
means of enforcing the restrictive covenants. However, the
restrictive covenants, as distinguished from the right of
re-entry, should not be disregarded.
G-15 TAX TITLES
When
title to property is made through a recorded tax deed
properly describing the property under examination, and 10
years have elapsed since the recording of such deed, the
title may be insured without requirement of an action to
perfect the tax title, unless it is established that the tax
for the year which resulted in the sale was paid before the
sale either directly or under another assessment for the
same tax.
CORPORATIONS
C-1 CORPORATE SEAL
A
corporate instrument may be passed where no corporate seal
was affixed.
C-2 CORPORATION DEED TO A COMPANY OFFICER
A deed
from a corporation to a grantee who, from the record,
appears to be an officer, director or stockholder of the
grantor corporation, or a grantee obviously related to such
a person, may be passed without objection when title has
reached a purchaser for value.
C-3 CORPORATION- DEEDS DATED PRIOR TO INCORPORATION
A. When
a deed is dated and recorded before the certificate of
incorporation of a grantee is filed in the office of the
Secretary of State and a confirmatory deed is obtained from
the grantor to the corporation after the filing of the
certificate of incorporation, the deed will be passed as
sufficient without any requirement for further instruments
from the incorporators or stockholders of the grantee or
from those who furnished the consideration for the
conveyance.
B. When
a deed is dated before the certificate of incorporation of
the grantee is filed in the office of the Secretary of State
and the deed is recorded on the same day as the certificate
is filed or later, the deed will be passed as sufficient
without requirement of proof of delivery or of any
confirmatory deeds.
C-4 FRANCHISE TAXES
Franchise taxes accrued more than 10 years ago against a
corporation which has been dissolved within the past 10
years may be disregarded, provided the premises in question
has been or is being conveyed to a purchase for value. If
such dissolved corporation is the present owner, proof of
the payment of taxes for the immediately preceding ten years
should be obtained. For corporations that are active,
franchise taxes accruing more than 10 years ago may be
disregarded, provided that title has been or is being
conveyed to a purchaser for value.
C-5 INTERLOCKING DIRECTORS OR STOCKHOLDERS
A
conveyance from a corporation to a corporate grantee having
interlocking directors or stockholders may be passed without
objection when title has been conveyed to a purchaser for
value.
C-6 OLD CORPORATIONS
When a
corporation has been out of title and the property being
conveyed has been improved for over 10 years, no search need
be made for a certificate of incorporation.
DESCRIPTIONS AND BOUNDARIES
D&B-1 DESCRIPTION-DEFECT CAUSED BY CHANGE IN STREET LINES
Where
there is a defect in the description appearing in a deed
which has been on record for 10 years or more and the defect
arose by reason of a change in the street line of the street
by which the beginning point is monumented or by reason of a
change in the street line of the street upon which the
property abuts, the title may be insured without requirement
of a correction deed, if both of the following conditions
exist:
A. All
subsequent deeds on record for 10 years or more correctly
describe the property with reference to the changed street
lines; and
B. The
property has been improved for 10 years or more, and the
grantor in the described deed owned no other property
abutting the misdescribed property.
D&B-2 DESCRIPTION-VARIANCE BETWEEN STREETS ON FILED MAP
AND IN PARTICULAR DESCRIPTION
Where a deed describes property by reference to a
lot on a filed map and includes a description which
coincides with the property location on the map, and after
recording of the deed there is a change in the location of
the line of the street from which the beginning point is
monumented, title may be insured without requiring a
correction deed.
D&B-3 EFFECT OF "SAME AS" RECITAL IN DEED
A. When
an instrument purports to convey or mortgage all of the
interest of an Owner but the instrument contains a recital
that the property is the same as that described in (as
distinguished from conveyed by) a previous instrument which
conveyed or mortgaged only a fractional interest, the
recital should be disregarded and the instrument passed as
conveying or mortgaging the entire interest of the owner.
B. When a conveyance contains a defective
description but the description is followed by a recital
that the property is the same as that conveyed by or
described in a previous instrument which contains a good
description, the defective description should be disregarded
and the deed passed as conveying the entire premises.
D&B-4 FENCE VARIATIONS
Where there are variations between the lines of
the record title and lines of fences, hedges or retaining
walls, the policy may except such variations but will not
except failure of title to the land outside of such fence,
hedge or retaining wall unless such variations exceed 12
inches.
D&B-5 INSURING GORES IN RECORD TITLE
Where
there is a gore of less than 1 inch between 2 lots,
contiguity between the 2 lots will nevertheless be insured
unless there is an express reservation to the land in the
gore or unless there is pending litigation over title to the
gore.
D&B-6 PARTY WALLS
A. When
the distances and dimensions given for 2 or more plots would
make them contiguous except for the fact that the point of
beginning in 1 or more of the descriptions is located
opposite the center of a party wall, the monumentation may
be disregarded and contiguity may be insured when the
properties come into a common ownership provided that the
gap between the point opposite the center of the party wall
and the line determined by the distance is 3 inches or less.
B. When
the point of beginning is described as being "at" the center
of the party wall (as distinguished from "opposite") and the
front of the party wall is set back from the street line at
least 2 feet, the attempted location at the center of the
party wall may be disregarded entirely as a monument even if
the gap is more than 3 inches.
C. Where
a common owner conveyed buildings separately monumenting
some plots as opposite the center of a party wall, the
monumentation may be disregarded for the purpose of insuring
contiguity where the sum of the dimensions used in the
conveyances totals all the property originally held by the
common owner.
D. Where
a grantor conveys premises monumenting the same as opposite
the center of a party wall, such monumentation may be
disregarded for the purpose of insuring contiguity where the
dimensions used in the conveyance would otherwise convey all
the property of the grantor.
D&B-7 RECIPROCAL DRIVEWAY EASEMENTS
Where a
reciprocal driveway easement is in actual use by adjoining
owners and the reciprocal easement is affirmatively recited
in deeds of record on both sides for at least the past 10
years, and not subordinate to any mortgage, the reciprocal
easement may be insured and any defect in its creation by
the common owner disregarded.
D&B-8 VARIATION BETWEEN RECORD DESCRIPTION AND TAX MAP
A
variation between a record description and a tax map of up
to 1 inch may be disregarded.
ESTATE ADMINISTRATION & TAXES
E-I
ADMINISTRATOR'S DEED-ADDITIONAL BOND
A deed
made by an administrator of a decedent, to whom unrestricted
letters have been issued, may be insured without compliance
with SCPA 805 (3) if acknowledged waivers of citation,
renunciation and consent to the appointment of the
Administrator executed by all of the distributees, reciting
that the filing of a bond is not required, were filed with
the Surrogate prior to the issuance of the letters.
E-2 FEDERAL ESTATE TAXES
A. The
lien for Federal Estate Tax may be disregarded when the
federal gross estate of a decedent is as follows: for
decedents dying between January 1, 1986 and December 31,
1997 a gross estate of not more than $600,000; for a
decedent dying in 1998 a gross estate of not more than
$625,000; for a decedent dying in 1999 a gross estate of not
more than $650,000; for decedents dying in 2000 or 2001 a
gross estate of not more than $675,000; for decedents dying
in 2002 or 2003 a gross estate of not more than $1,000,000;
for decedent's dying in 2004 or 2005 a gross estate of not
more than $1,500,000; for decedents dying in 2006, 2007 or
2008 a gross estate of not more than $2,000,000; and for
decedents dying in 2009 a gross estate of not more than
$3,500,000.
B. The
lien for Federal Estate Tax against a deceased tenant by the
entirety or a deceased joint tenant may be disregarded on a
deed from the surviving tenant by the entirety or the
surviving joint tenant to a purchaser who pays adequate and
full consideration.
C. The
lien for Federal Estate Tax against a deceased tenant by the
entirety or deceased joint tenant may be disregarded upon a
mortgage for adequate and full consideration from the
surviving tenant by the entirety or the surviving joint
tenant.
D. The
lien for Federal Estate Tax against a decedent may be
disregarded upon a mortgage for value or a transfer made to
a purchaser for value which transfer or mortgage is made by
the heirs, devisees or distributees of the decedent.
E. Where
in an action party defendants are included as unknowns in an
omnibus clause, no question will be raised as to possible
Federal Estate Tax against the estates of any such unknowns
who may be dead and the United States Government need not be
named a party for purpose of cutting off such possible
Federal Estate Tax. The United States Government is to be
named as a party defendant for any other proper reason which
may exist in the title.
E-3 INHERITANCE BY SURVIVING SPOUSE
A. DEATH
OF DECEDENT PRIOR TO MARCH 1, 1964
1) When
decedent died prior to March 1, 1964 and title is through a
surviving spouse who claims the entire title under
subdivisions 2 and 3 of Section 83 of the Decedent Estate
Law because the estate was less than $5,000 deeds should be
obtained from the surviving parents or parent, or where
title is made through a spouse who claims the entire title
under subdivision 4 because the estate was less than
$10,000, deeds should be obtained from the surviving
brothers and sisters or their descendants. However the
requirement for such deeds will be waived if title is made
through a proceeding in the Surrogate's Court by an
administrator for leave to sell the property or an
accounting proceeding or a proceeding for probate of heirship or other appropriate action or proceeding properly
conducted and such parents or collaterals are joined as
parties and an appropriate finding is made that the value of
the estate is below the required amount.
2) The
title from the surviving spouse of an intestate may be
passed without requiring deeds from the parents or
collaterals and without requiring any of the foregoing
proceedings or actions if proof is furnished of all three of
the following:
a) The
estate was below the amount required to give the spouse the
entire title; this may be established either by the estate
tax proceeding or by affidavit; and
b) The
property had been improved for more than 10 years; and
c) The
deed from the surviving spouse or from his or her heirs,
devisees or successors in interest had been recorded for
more than 10 years.
B. DEATH OF DECEDENT BETWEEN MARCH 21, 1964 AND SEPTEMBER 1,
1992
1) When
decedent died on or after March 1, 1964 and title is through
a surviving spouse who claims the entire title under
subdivisions 2 and 3 of Section 83 of the Decedent Estate
Law or under paragraphs 3 and 4 of subdivision (a) of
Section 4-1.1 of the Estates, Powers and Trusts Law (as said
paragraph existed prior to September 1, 1992) because the
estate was less than $25,000, deeds should be obtained from
the surviving parents or parent.
However
such deeds should be waived if title is made through a
proceeding in the Surrogate's Court by an administrator for
leave to sell the property or an accounting proceeding or a
proceeding for probate of heirship or other appropriate
action or proceeding is properly conducted and such parents
are joined as parties and an appropriate finding is made
that the value of the estate is below the required amount.
NOTE:
The Following Did Not Take Effect Until March 1, 1974:
2) The
title from the surviving spouse of an intestate may be
passed without requiring deeds from the parents and without
requiring any of the foregoing proceedings or actions if
proof is furnished of all the following:
a) The
estate was below the amount required to give the spouse the
entire title; this may be established either by the estate
tax proceeding or by affidavit, and
b) The
property had been improved for more than 10 years, and
c) The
deed from the surviving spouse or from his or her heirs,
devisees or successors in interest had been recorded for
more than ten years.
C. DEATH OF DECEDENT ON OR AFTER SEPTEMBER 1, 1992
When
decedent died on or after September 1, 1992, and title is
through a surviving spouse who claims the entire title under
Article 4 of the Estates Powers and Trusts Law, deeds do not
have to be obtained from the surviving parents or parent.
E-4 NEW YORK ESTATE TAX-DEATH AFTER July 1, 1978
A. The
lien for New York Estate Tax may be passed where the
decedent died a resident of New York State (i) prior to June
9, 1994 and the federal gross estate, including the subject
real property, is not more than $108,333; (ii) on or after
June 9, 1994 and on or prior to September 30, 1998, and the
federal gross estate, including the subject real property,
is not more than $115,000; (iii) on or after October 1,
1998 and on or prior to January 31, 2000 and the federal
gross estate, including the subject real property, is not
more than $300,000; (iv) on or after February 1, 2000 and on
or prior to December 31, 2001 and the federal gross estate,
including the subject property, is not more than $675,000;
or (v) on or after January 1, 2002 and on or prior to
December 31, 2009 and the federal gross estate, including
the subject property, is not more than $1,000,000.
B. The
lien for New York Estate Tax against a deceased tenant by
the entirety or joint tenant may be disregarded on a deed
from the surviving tenant by the entirety or joint tenant to
a bona fide purchaser for adequate and full consideration.
C. Where
death occurs after May 25, 1990, the lien for New York
Estate Tax against a deceased tenant by the entirety or
deceased joint tenant may also be disregarded upon a
mortgage for adequate and full consideration from the
surviving tenant by the entirety or the surviving joint
tenant.
D.
Where death occurs after May 25, 1990, the lien for New York
Estate Tax may also be disregarded against an interest in
property held by the decedent and the decedent's surviving
spouse as tenants by the entirety.
E. The
lien for New York Estate Tax against a decedent may be
disregarded upon a mortgage for value or a transfer made to
a purchaser for value which transfer or mortgage is made by
the heirs, devisees or distributes of the decedent.
E-5 POSTHUMOUS AND AFTER-BORN CHILDREN
When the record fails to show whether any child of a
decedent was born after the death of the decedent or after
the date of the decedent's will, and no proof on the subject
is available, the question may be disregarded if 30 years
have passed since the date of the death of the decedent, or
if ten years have passed since a conveyance by the devisees
to a bona fide purchase.
E-6 POWER OF SALE-ANCILLARY LETTERS OF PROBATE
A. Prior
to September 1, 1967: Where a decedent dies in a State
other than New York State, owning real property in New York
State, and his will is probated in such foreign state and an
ancillary probate is had in New York State, the foreign
executor may act in New York State pursuant to a power of
sale granted in the will without obtaining Ancillary Letters
in New York, unless precluded by Section 131 of the Banking
Law.
B. After
September 1, 1967: Where a decedent dies in a State other
than New York State, owning real property in New York State,
and his will is probated in such foreign state, either an
ancillary or original probate of the will must be completed
in New York State and ancillary Letters must be issued to
the foreign executor before exercising in New York State a
power of sale granted in the will.
E-7 PROBATE OF WILLS
A. When
title is made through a will and the estate is out of title
and the petition for probate, through not made by a blood
relative of the decedent, shows that the heirs are direct
descendants or brothers and sisters, the title will be
insured without exception as to the sufficiency of such
proof.
B. If
under the same circumstances the petition shows that the
heirs include nephews or nieces or more remote relatives,
the title will nevertheless be insured without exception as
to the sufficiency of such proof if 5 years have elapsed
since the probate of the will.
C. Proof
of Heirship on Probate - Where title is presently being made
through a will and the petition is made for probate by the
surviving spouse, who has had children with the decedent,
the title will be insured without further proof of heirship,
provided that the decedent had not had a prior marriage and
satisfactory proof of that fact is furnished.
E-8 PROOF OF HEIRSHIP
When a
deed from the heirs of a former owner who died intestate has
been recorded for more than 10 years, and the only proof
that such grantors are the only heirs are contained in a
petition for letters of administration made by one who was
not a blood relative of the decedent, the title will be
insured without any exception as to the sufficiency of such
proof.
E-9 PROOF OF HEIRSHIP & DEATH OF JOINT TENANT OR TENANCY BY
THE ENTIRETY
A. When
a deed from the heirs of a deceased former owner who died
intestate or the surviving tenant by the entirety or joint
tenant of a deceased former owner has been recorded more
than 10 years, and the only proof that such grantor(s) are
the surviving tenant by the entirety or joint tenant or the
only heirs is contained in a statement in the transfer or
estate tax petition or application for release of lien by a
qualified person or (pursuant to Real Property Actions and
Proceedings Law Section 341) in a recital contained in a
duly acknowledged deed or mortgage or other instrument
executed for the purpose of transferring title which is more
than 10 years old to the effect that he/she is the surviving
spouse or joint tenant or the only persons interested in the
estate of the decedent, the title will be insured without
exception as to the sufficiency of such proof.
B. A
recorded release of New York Estate Tax may also be accepted
as proof of death of a deceased joint tenant or tenancy by
the entirety.
E-10 PROOF OF PAYMENT OF LEGACIES
Legacies
whether expressly or impliedly charged on the real property
of a decedent may be disregarded after 10 years from the
date of death of the decedent if the estate has passed out
of title.
E-11 PUBLIC ADMINISTRATOR'S SALES
Title
made through sales by public administrators may be insured,
if otherwise valid, despite the fact that no bond has been
filed in the proceeding for the sale of the particular
parcel and despite the fact that no bank has been designated
in the order as the depository of the proceeds of sale.
E-12 PUBLIC ADMINISTRATOR'S SALES ACTING IN FIDUCIARY
CAPACITY
If a
person died intestate on or after June 1, 1965, title made
through a sale made by a Public Administrator, acting as
administrator of the estate under Section 11-1.1 of the
Estates, Powers and Trust Law, may be insured without
requiring the filing of an additional bond unless the court
so requires.
LIENS AND JUDGMENTS
L&J-1 FEDERAL TAX LIENS
A. A
notice of Federal Tax Lien based on an assessment made, on
or before November 5, 1990 may be disregarded upon the
execution and delivery of a deed, lease or mortgage
affecting the property of the taxpayer to a Purchaser (as
defined in Section 6323 of the Internal Revenue Code) or a
Mortgagee after 6 years and 30 days have elapsed from the
date of assessment set forth in the notice of Federal Tax
Lien, unless the notice of Federal Tax Lien was refiled
prior to the expiration of the 6 year and 30 days period.
If the notice of Federal Tax Lien was refiled within the 6
year and 30 day period from the date of assessment, the
notice of Federal Tax Lien may be disregarded after 10 years
and 30 days have elapsed from the date of assessment set
forth in the notice of Federal Tax Lien unless the notice of
Federal Tax Lien was further refiled.
B.
Federal Tax liens against one of the parties holding title
as tenants by the entirety may be passed when title passes
from the other tenant as a survivor following the death of
his or her spouse. The lien will not be passed when both
tenants by the entirety are alive.
L&J-2 FEDERAL TAX LIENS FILED BETWEEN DATE OF MORTGAGE AND
RECORDING
Where
between the time of a bona fide closing and the time of
recording of the insured mortgage, a Federal Tax Lien is
filed against a mortgagor, the Federal Tax Lien will be
passed upon proof establishing the actual closing date and,
if there is a delay between the date of the mortgage or
mortgages and the recording thereof, the reason for the
delay in recordation.
L&J-3 JUDGMENTS AGAINST PARTNERS
A. Where
title is in a limited partnership or limited liability
partnership duly formed, which is about to convey or
mortgage property, judgment searches need not be run against
general or limited partners and judgment liens against them
may be disregarded.
B. When
title is taken in the trade name of a general partnership in
accordance with its named designation in the certificate of
partnership which is properly filed, judgment searches need
not be run against general or limited partners and judgment
liens against them may be disregarded.
L&J-4 JUDGMENTS ENTERED BETWEEN DATE OF DEED OR MORTGAGE
AND RECORDING
Where between the time of a bona fide closing and the time
of recording instruments, a judgment is docketed against a
grantor or mortgagor, the judgment will be passed upon proof
establishing the actual closing date and, if there is a
delay between the date of the deed(s) or mortgage(s) and the
recording thereof, the reason for the delay in recordation.
L&J-5 NYC LIENS AND JUDGMENTS DURATION
A. Parking Violation Bureau Judgments:
8 years (N.Y. Vehicle and Traffic Law Section 241 (3) )
B. Environmental Control Board Judgments:
8 years (NYC Charter Ch. 57 Section 1404)
C. Transit Adjudication Bureau Judgments:
10 years
N.Y. Public Authority Law Section 1209-A; 1984 N.Y. Laws
Ch.93)
L&J-6 PRIORITY OF A PURCHASE MONEY MORTGAGE OVER JUDGMENT
AGAINST THE MORTGAGOR
Where
real property is sold and conveyed, and at the same time a
mortgage thereupon is given by the purchaser to secure the
payment of the whole or a part of the purchase money, the
lien of the mortgage upon that real property is superior to
the lien of a previous money
judgment
against the purchase money mortgagor. This may be followed
whether the mortgage is made directly to the grantor or to a
third party, so long as the mortgage recites that it is a
purchase money mortgage.
L&J-7 SURETY BOND LIENS-WHEN DISREGARDED
A Surety
Bond Lien may be disregarded after 10 years from the date of
filing provided that such lien was not extended by court
order and such extension noted in the record where the
Surety Bond Lien is filed.
MORTGAGES AND FORECLOSURE OF MORTGAGES
M-1 FORECLOSURE
When a
judgment has been rendered in favor of an Agency of the
State or a Municipality other than the Industrial
Commissioner of the State of New York, it will be adequate
to join the State of New York or such Municipality without
joining the Agency as a party defendant provided that
appropriate recitals are contained in the complaint giving
the reason for joinder as a Commissioner, agency, or
municipality.
M-2 FORECLOSURES IN FEDERAL COURTS
Exception need not be taken to a publication of a public
sale of realty or interest therein under any order, judgment
or decree of any court of the United States provided it has
been made in accordance with the Federal Statue (28 U.S.
Code Sec. 2002) that reads as follows:
"A
public sale of realty or interest therein under any order,
judgment or decree of any court of the United States shall
not be made without notice published once a week for at
least four weeks prior to the sale in at least one newspaper
regularly issued and of general circulation in the county,
state of judicial district of the United States wherein the
realty is situated."
"If such
realty is situated in more than one county, state, district
or circuit, such notice shall be published in one or more of
the counties, states, or districts wherein it is situated,
as the court directs. The notice shall be substantially in
such form and contain such description of the property by
reference or otherwise as the court approves. The court may
direct that the publication be made in other newspapers."
"This
section shall not apply to sales and proceedings under Title
11 or by receivers or conservators of banks appointed by the
Comptroller of the Currency."
M-3 FORECLOSURE - PARTIES - SUCCESSORS OF DECEASED MORTGAGEE
When the
holder of a junior lien dies intestate and no proceedings
have been had in his or her estate for the appointment of an
administrator, the lien will be deemed barred in an action
to foreclose a prior mortgage if all the next of kin have
been made parties and satisfactory proof is furnished of the
death, the intestacy, the family history and the absence of
creditors of the estate. In such situations the lack of
proof that there were no creditors may be disregarded when
more that 6 years have elapsed since the delivery of the
referee's deed.
M-4 ASSIGNMENTS OF JUDGMENT TO UNITED STATES OF AMERICA
When a
judgment, subsequent in lien to a mortgage being foreclosed
and docketed prior to the filing of a notice of pendency, or
a judgment docketed subsequent to the filing of a notice of
pendency, is assigned to the United States of America after
the filing of the notice of pendency in an action to
foreclose such mortgage, then such assignment may be
disregarded provided the record holder of such judgment
filed prior to the notice of pendency, is properly joined
and served as a party defendant, all necessary papers are
served on such party, and the action goes to judgment and
sale.
M-5 MORTGAGE SATISFACTION BY AFFIDAVIT RPAPL SECTION 1921
A
mortgage secured by property improved by a one-to-six
family, owner occupied, residential structure or residential
condominium unit may be disregarded without the recording of
a Satisfaction of Mortgage provided there has been
compliance with RPAPL Section 1921.
M-6 RELEASE IN LIEU OF SATISFACTION OF MORTGAGE
When the
premises affected by a mortgage lien is released of record
instead of the mortgage being satisfied, the mortgage may be
omitted as an objection to title.
M-7 SMALL ANCIENT MORTGAGES
A. A
mortgage in the face amount of $25,000 or less which matured
more than 12 years ago and which is not recited in the chain
of title for 12 years or more, may be disregarded upon an
affidavit that there has been no payment or demand for
payment of principal or interest for 12 years, provided that
the present owner or his or her ancestor was not the
mortgagor and there has been one or more transfers of title
for value.
B. A
mortgage in the face amount of $25,000 or less which
contains no stated maturity date, which has been recorded
for more than 30 years, and which is not recited in the
chain of title for 12 years or more, may be disregarded upon
an affidavit there has been no payment or demand for payment
of principal or interest for 12 years, provided that the
present owner or his or her ancestor was not the mortgagor
and there has been one or more transfers of title for value.
M-8 UNRECORDED MORTGAGE
Recital
of an unrecorded mortgage in a deed of record for 20 years
or more may be passed on proof that there has been no
payment or demand for payment of principal or interest for
12 years, and that the owners have had no knowledge of said
unrecorded mortgage. Where such recital is contained in the
last deed of record satisfactory proof will be required to
dispose of the objection.
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