Buyers Tips



These are the steps to follow in a successful New York home purchase:

Determine affordabilityA home is the largest single investment you have probably ever made. The first question has to be “Can you afford the home you’ve chosen?”. Hopefully you’ve reviewed this before making an offer but if you haven’t this would be the time to take a hard look at the numbers and to make sure they still make sense to you. At closing you will have to pay the price for the home and closing costs. Usually the bulk of the purchase price is paid with a mortgage loan. Your monthly mortgage payment will generally cover principal and interest on you mortgage loan, real estate taxes and property insurance (not always). Afterward, you will need to budget for that payment, maintenance, utility bills, and repairs. Remember there are tax advantages to home ownership that you need to consider as well. To avoid surprises, examine the seller’s bills to get an idea of the monthly expenses for the home. Also check the age and condition of appliances, plumbing, roof, structures and wiring since they might need repair after your purchase.

Make your offer – You’ve made your bid. You now must wait until you are notified that the seller has accepted it. Once they have you may be asked to sign a “Binder” and to put down a token amount of money ($100 is common). If you are don’t worry, binders aren’t binding in New York unless they contain all of the essential elements of the transaction. They are usually not prepared that way but are prepared just to outline the basic agreement and to reassure both buyer and seller (and maybe the broker) that there is really a deal. If you are in doubt, mark the binder “SUBJECT TO ATTORNEY APPROVAL” and see your attorney within some reasonable period thereafter.

Hire your attorney At this point you are going to have many questions and you will be called upon to do a number of things in a very short period of time. Since most attorneys charge a flat fee for their services, hiring an attorney early in the transaction will allow you to have a resource available to help you separate what you must do from what others want you to do  

Home Buying Tips – Choosing your attorney
How long has the attorney been in practice?
How many transactions have they handled?
Do real estate transaction make up a large part of their practice?
How long have they been practicing in this field?
If you would like an initial consultation will the attorney agree to meet with you? If so, will they charge for it? How much?
Will you be charged a flat fee or will you be charged on an hourly basis. Hourly billing for residential real estate transactions is unusual and, potentially, extremely costly
Given the nature of your transaction, does the attorney believe that he is familiar with the resolution of any anticipated problems? 


Recommendations from real estate brokers and salespersons, mortgage brokers and bankers and others working full time in the field will generally yield the names of experienced attorneys 
 

 

DETERMINE THE CONDITION OF THE PROPERTYIt is important to check the condition of the real estate before you sign the contract. If you choose, you may have the premises inspected in advance by a professional like Event Management ServiceNowagency to modify formally situation or a knowledgeable friend before you are legally bound to buy it. The cost of repairs (or the performance of the repairs themselves) may be addressed in your purchase contract if the seller agrees. Because, as a general rule you accept the condition of the property when you sign the contract (subject to a final inspection before the closing), it is best not rely on the Sellers’ representations about the condition of the house.

Home Buying Tips – Your engineer

 

You’ve found the house, you’ve selected an attorney and now yet another professional is needed to help you make the right decision, an engineer. The engineer is going to help you decide if you’re really going to buy the house you’ve found. A good engineer will review all the major systems in the house (plumbing, heating/cooling and electrical, etc.) and will thoroughly inspect the structure itself. He’ll see things you wouldn’t even know to look for!

Choose your engineer carefully –  Ask your friends, co-workers and family for recommendations of an engineer they have used and been happy with.

Go with the engineer – You must walk through with them. See what the engineer may be concerned about. Don’t wait for a report and then try to figure out what he means

Take notes – You’ll never remember everything you’ll want to review afterwards.


Special inspections – You may have unique features at the home you’ve chosen (swimming pool, septic system, central air conditioning, etc.) that are better inspected by  specialized inspectors from that field. Ask the engineer for recommendations

 Ask Questions – While you are walking through the house with your engineer he’ll answer anything. That’s the time to ask

 

SIGN YOUR CONTRACT OK, the moment of truth is at hand. You will meet with your attorney and review the contract, generally prepared by Sellers’ attorney. Any promises made by seller or broker must be put into the contract. Your attorney will make sure you are protected legally and you will help him identify terms that are unique to your purchase that he will make sure are made a part of the contract. You’ll sign and send the contract back with your down payment check (generally 10% of the purchase price, but frequently less). If you make changes there may be more negotiations before the seller signs. 

MAKE APPLICATION FOR YOUR MORTGAGE LOANHopefully you’ve been shopping around and you know where you want to apply. Although in many cases you will have applied prior to contact, if you haven’t you generally should submit the application no later than a week after the contract is fully signed.

COMPLY WITH LENDER REQUESTS FOR INFORMATIONIt is important that you provide any information or documents requested by your mortgage lender as quickly as possible. This will reduce the time required to approve your loan.

OBTAIN AND REVIEW YOUR MORTGAGE COMMITMENT Careful. Sometimes the commitment isn’t exactly the loan you applied for. Check the interest rate, points, origination fee, fixed rate or adjustable and the amount of the loan. Make sure it’s what you expected and if it isn’t notify the bank and your attorney immediately. Send a copy of the commitment to your lawyer.

PURCHASE HOME OWNERS’ INSURANCE: You will probably be required to bring a homeowners’ insurance policy to closing proving you have insurance as required by your lender (check the commitment for requirements). You will also need a receipt showing that you have paid the premium for one year. There may be other requirements too, so ask your insurance agent to call the lender well before the closing to be certain that the policy is correct.

UTILITIES AND TELEPHONE – As soon as a closing date is set, you should notify the telephone company about the change in your service, and to notify all utilities of the closing date. These include electricity, gas, water and sewer and cable TV, If your new house uses fuel oil, shop carefully for a provider before the closing. disposal.

FINAL INSPECTION – After a closing date has been set, call your Realtor to arrange for a final inspection of the property. The home should be in the same condition it was in on the date of the contract, with the exception of ordinary wear and tear, unless your contract specifically provides otherwise. Usually you’ll also be checking to make sure plumbing, heating, electr9ical systems and appliances are in working order and the roof is free from leaks.

REVIEW LENDER REQUIREMENTS AT CLOSING
– Review your mortgage commitment letter and check with your mortgage lender before closing. Lenders sometimes ask that you bring last-minute documentation with you.

GET CLOSING FIGURES
– Exact closing figures are usually not available until the business day before the closing. Once they become available, your attorney will calculate the amount you will need for closing and call you with that information. Please let your attorney know how to reach you the day before closing.

BRING PROPER FUNDS FOR PAYMENT AT CLOSINGPayment to the seller must be made by Certified or Cashier’s check . Consult your attorney for details. You must bring your checkbook also, there are usually a number of small expenses (tax and fuel adjustments, title charges, attorney fees, etc.) to be paid at closing.

NY EPTL,  Article 2 RULES GOVERNING DISPOSITIONS SUBJECT TO THIS LAW

PART 1. SUBSTANTIVE RULES
GOVERNING DISPOSITIONS

Section 2-1.1 Heirs at law and next of kin defined.

2-1.2 Issue to take per capita, per stirpes or by representation.
2-1.3 Adopted children and posthumous children as members of a class.
2-1.4 Words of inheritance unnecessary.
2-1.5 Advancements and their adjustment.
2-1.6 Disposition of property where there is no sufficient evidence that persons have died otherwise than simultaneously.
2-1.7 Presumption of death from absence; effect of exposure to specific peril.
2-1.8 Apportionment of federal and state estate or other death taxes; fiduciary to collect taxes from property taxed and transferees thereof.
2-1.9 Distributions in kind by executors and trustees.
2-1.10 Provisions relating to infants and minors.
2-1.11 Renunciation of property interests.
2-1.12 Credit shelter formula bequests
2-1.13 Right to recover state estate and gift taxes where decedent retained interest
2-1.14 Consequences of partly ineffective dispositions of trust principal to two or more beneficiaries

PART 1. SUBSTANTIVE RULES GOVERNING DISPOSITIONS

S 2-1.1 Heirs at law and next of kin defined Whenever used in a statute or instrument, unless a contrary intention is expressed therein, the term “heirs”, “heirs at law”, “next of kin” or any term of like import means the distributees, as defined in 1-2.5. 

S 2-1.2 Issue to take per capita, per stirpes or by representation

(a) Instruments executed prior to September first, nineteen hundred ninety-two. Whenever a disposition of property is made to “issue”, such issue, if in equal degree of consanguinity to their common ancestor, take per capita, but if in unequal degree, per stirpes, unless a contrary intention is expressed. (b) Instruments executed on or after September first, nineteen hundred ninety-two. Whenever a disposition of property is made to “issue”, such issue take by representation as defined in 1-2.16, unless a contrary intention is expressed.

S 2-1.3 Adopted children and posthumous children as members of a class
(a) Unless the creator expresses a contrary intention, a disposition of property to persons described in any instrument as the issue, children, descendants, heirs, heirs at law, next of kin, distributees (or by any term of like import) of the creator or of another, includes:

   (1) Adopted children and their issue in their adoptive relationship. The rights of adopted children and their issue to receive a disposition under wills and lifetime instruments as a member of such class of persons based upon their natural relationship shall be governed by the provisions of subdivision two of section one hundred seventeen of the domestic relations law.
   (2) Children conceived before, but born alive after such disposition becomes effective.
   (3) Non marital children. For the purposes of this paragraph, a nonmarital child is the child of a mother and is the child of a father if the child is entitled to inherit from such father under section 4-1.2 of this chapter. The provisions of this paragraph shall apply to the wills of persons dying on and after September first, nineteen hundred ninety-one, to lifetime instruments theretofore executed which on said date are subject to the grantor`s power to revoke or amend, and to all lifetime instruments executed on or after such date. S 2-1.4 Words of inheritance unnecessary
The word “heirs” or words of inheritance of like import are not necessary to create or dispose of a fee.

S 2-1.5 Advancements and their adjustment
(a) An advancement is an irrevocable gift intended by the donor as an anticipatory distribution in complete or partial satisfaction of the interest of the donee in the donor`s estate, either as distributee in intestacy or as beneficiary under an existing will of the donor.

(b) No advancement shall affect the distribution of the estate of the donor unless proved by a writing contemporaneous therewith signed by the donor evidencing his intention that the gift be treated as an advancement, or by the donee acknowledging that such was the intention.

(c) When so proved, the advancement is part of the estate of the donor for the purpose of distribution. If such advancement is equal to or greater than the interest of the donee, whether in intestacy or under the will, such donee or his successor in interest may not share in the distribution of the estate; but if less than such intestate share or testamentary interest, the donee or his successor in interest may take his intestate share or testamentary interest reduced by the amount of the advancement.

(d) Unless otherwise provided in a writing contemporaneous with the advancement and signed by the donor: (1) An advancement, made as provided in this section, may be adjusted out of the property of the donor in such manner as may be equitable. (2) The advancement shall have the value at which it is appraised for estate tax purposes, or, if not included in the gross taxable estate of the donor, the value at which it would have been appraised if included therein. (e) Nothing in this section shall increase or decrease the elective share of a surviving spouse under either 5-1.1 or 5-1.1-A except to the extent authorized by paragraph (b) of those sections.

S 2-1.6 Disposition of property where there is no sufficient evidence that persons have died otherwise than simultaneously

(a) Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as otherwise provided in this section.

(b) Where a testamentary disposition of property depends upon the time of death of two or more beneficiaries designated to take alternatively by reason of survivorship and there is no sufficient evidence that such beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are alternative beneficiaries and such portions shall be distributed respectively to those who would have taken the whole property in the event that the designated beneficiary through whom they take had survived.

(c) Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

(d) Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

(e) This section shall not apply in the case of wills, lifetime trusts, deeds or contracts of insurance wherein a provision other than that prescribed by this section has been made for the disposition of property.

S 2-1.7 Presumption of death from absence; effect of exposure to specific peril

(a) A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death.

(b) The fact that such person was exposed to a specific peril of death may be a sufficient basis for determining at any time after such exposure that he or she died less than three years after the date his or her absence commenced.

(c) The three-year period provided herein shall not apply in any case in which a different period has been prescribed by statute.

S 2-1.8 Apportionment of federal and state estate or other death taxes; fiduciary to collect taxes from property taxed and transferees thereof

(a) Whenever it appears in any appropriate action or proceeding that a fiduciary has paid or may be required to pay an estate or other death tax, under the law of this state or of any other jurisdiction, with respect to any property required to be included in the gross tax estate of a decedent under the provisions of any such law (hereinafter called “the tax”), the amount of the tax, except in a case where a testator otherwise directs in his will, and except where by any instrument other than a will (hereinafter called a “non-testamentary instrument”) direction is given for apportionment within the fund of taxes assessed upon the specific fund dealt with in such non-testamentary instrument, shall be equitably apportioned among the persons interested in the gross tax estate, whether residents or non-residents of this state, to whom such property is disposed of or to whom any benefit therein accrues (hereinafter called “the persons benefited”) in accordance with the rules of apportionment herein set forth, and the persons benefited shall contribute the amounts apportioned against them.

(b) Unless otherwise provided, when a disposition is made by which any person is given an interest in income or an estate for years or for life or other temporary interest in any property or fund, the tax apportionable against such temporary interest and the remainder limited thereon is chargeable against and payable out of the principal of such property or fund without apportionment between such temporary interest and remainder. The provisions of this paragraph apply although the holder of the temporary interest has rights in the principal, but do not apply to a common law annuity.

(c) Unless otherwise provided in the will or non-testamentary instrument, and subject to paragraph (d-1) of this section:

(1) The tax shall be apportioned among the persons benefited in the proportion that the value of the property or interest received by each such person benefited bears to the total value of the property and interest received by all persons benefited, the values as finally determined in the respective tax proceedings being the values to be used as the basis for apportionment of the respective taxes.
(2) Any exemption or deduction allowed under the law imposing the tax by reason of the relationship of any person to the decedent, the fact that the property consists of life insurance proceeds or the charitable purposes of the gift shall inure to the benefit of the person bearing such relationship or receiving such insurance proceeds or charitable gift, as the case may be.
(3) Any deduction for property previously taxed and any credit for gift taxes paid by the decedent shall inure to the benefit of all persons benefited and the tax to be apportioned shall be the tax after allowance of such deduction or credit.
(4) Any interest resulting from the late payment of the tax shall be apportioned in the same manner as the tax and shall be charged wholly to principal.

(5) Any discount allowed for prepayment of the tax shall be credited wholly to the principal of the funds contributing the moneys used for prepayment in proportion to the contribution made.

(d) Subject to subparagraphs (1), (2) and (3) of this paragraph, any direction as to apportionment or non-apportionment of the tax, whether contained in a will or a non-testamentary instrument, relates only to the property passing thereunder, unless such will or instrument provides otherwise.

(1) Any such direction in a will which is later in date than a prior non-testamentary instrument and which contains a contrary direction shall govern provided that the later will specifically refers to the direction in such prior instrument.
(2) Any such direction in a non-testamentary instrument which is later in date than a prior will or non-testamentary instrument and which contains a contrary direction shall govern provided that the later instrument specifically refers to the direction in such prior will or instrument.

(3) Any such direction provided in a non-testamentary instrument only relates to the payment of the tax from the property passing thereunder and such direction shall not serve to exonerate such non-testamentary property from the payment of its proportionate share of the tax, even if otherwise directed in that non-testamentary instrument. (d-1)(1)(A) If any part of the gross tax estate consists of property the value of which is includible in the gross tax estate by reason of S2044 of the Internal Revenue Code of 1986 as from time to time amended, the decedent`s estate shall be entitled to recover from the person receiving the property the amount by which the total tax under article twenty-six of the tax law which has been paid exceeds the total tax under such article which would have been payable if the value of such property had not been included in the gross tax estate.

(B) Clause (A) of this subparagraph shall not apply if the decedent specifically directs otherwise by will. (2) For the purposes of this paragraph, if there is more than one person receiving the property, the right of recovery shall be against each such person. (3) In the case of penalties and interest attributable to additional taxes described in subparagraph (1) of this paragraph, rules similar to subparagraphs (1) and (2) of this paragraph shall apply. (e) In all cases in which any property required to be included in the gross tax estate does not come into the possession of the fiduciary, he is authorized to, and shall recover from the persons benefited or from any person in possession of such property the ratable amounts of the tax and any interest payable by the persons benefited. The surrogate may direct the payment thereof to the fiduciary and may charge such payments against the interests of the persons benefited in any assets in the possession of the fiduciary or any other person. If the fiduciary cannot recover the amount of the tax and interest apportioned against a person benefited, such amount may be charged in such manner as the surrogate determines.

(f) No fiduciary is required to pay over or distribute to any person other than the fiduciary charged with the duty to collect and pay the tax any fund or property with respect to which the tax is or may be imposed until the amount of the tax apportioned or which may be apportioned against such fund or property and any interest due from the persons entitled thereto is paid or, where the tax has not been determined or apportionment made, unless and until adequate security for such payment is furnished to the fiduciary making such payment or distribution. (g) The surrogate shall make such preliminary, intermediate or final decrees or orders in the proceeding, as he shall deem advisable, tentatively or finally apportioning the tax and any interest, directing the fiduciary to collect the apportioned amounts from the property or interests in his possession of any persons against whom such apportionment has been made and directing all other persons against whom the tax and any interest are apportioned or from whom any part of the tax and any interest may be recovered to make payment of such apportioned amounts to such fiduciary; and if it is ascertained in such proceeding that the property in the possession of the fiduciary, otherwise payable to a person liable for any part of the tax and interest, is insufficient to discharge the liability of such person, the surrogate may direct that the balance of the apportioned amount due shall be paid to the fiduciary by such other person. If, in the course of the proceeding, it is ascertained that more than the ratable amount of the tax and interest due from any person has been paid by him or in his behalf the surrogate may direct an appropriate reimbursement of the overpayment.

(h) If the surrogate apportions any part of the tax against any person interested in non-testamentary property or apportions the tax among the respective interests created by any non-testamentary instrument, he may, in his discretion, assess against such property or interests, an equitable share of the expense in connection with the determination of the tax and the apportionment thereof. Whenever an attorney renders services to the estate or to its personal representative resulting in the exclusion from the gross taxable estate of any non-testamentary property or interests created by any non-testamentary instrument, the surrogate may, in his discretion, assess against such property or interests an equitable share of the compensation for such legal services rendered to the estate or to its personal representative in proportion to the benefit received by such property or interests from such services, unless the decedent`s will or the non-testamentary instrument contains a direction that no portion of the tax shall be apportioned against such non-testamentary property or against interests created by any non-testamentary instrument. The surrogate may retain jurisdiction of any proceeding until the purposes of this section have been accomplished.

Divorces in New York

 

In many cases, a divorce settlement can be achieved without the intervention of the court, by some form of negotiation, mediation or mollaborative means.

When spouses are unable to come to an agreement, their case is then presented to the court. A judge has the power to decide issues of divorce, property division, maintenance, support and custody. After the court hears evidence of the specific facts of the case, it will decide these issues based upon statutes (New York Domestic Relations Law) and precedent cases.

We recommend to all our clients that they seriously consider dispute resolution as the preferred method to resolve matrimonial disputes. Many times, the emotional pressures are so strong that the ability of the party to make sound decisions that are in their best interest is compromised.

In most cases, each spouse hires an attorney to handle the divorce. Whether a spouse is negotiating a settlement or presenting a case to the court, he or she needs a knowledgeable and experienced family lawyer to get the benefit of all the law has to offer.


What questions will be raised?

Litigation in court is costly from the financial and emotional perspective. However, certain family matters can only be resolved through litigation.

A matrimonial attorney represents the interests of one spouse in the traditional attorney-client relationship. This is whether the case is actually litigated or just negotiated for a settlement.

A matrimonial action usually involves the following issues:

 

  • Custody (sole or joint) of the children
  • Visitation schedules and any exceptions
  • Child support calculations, and how payments are handled
  • Any restrictions on moving out of the area
  • Who will carry insurance on the children
  • Which parent claims the children as tax dependents
  • Division of property, and how titles and deeds will be transferred
  • Division of checking, savings, and investment accounts
  • Division of debt
  • Indemnification of future debts
  • Cash Settlements

Who gets to live in the house during the divorce?


If the spouses have minor children, the parent who spends the most time with the kids, or who provides their primary care, usually remains in the marital home with them. If you don’t have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave. If, however, there are no children, your attorney will address the special challenges of the situation.

Neither spouse has a right to throw out the other spouse. A party can request that the other person leave, but he or she is not obligated to comply. If your spouse changes the locks, or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door and let you back in.

When both parties own the home, the proper method of getting your spouse to leave is to request it from the court.

If your spouse has committed domestic violence, you may petition a judge for a restraining order. The order may require your spouse to vacate the premises.

 

How is child support determined?


The parties can stipulate and agree to almost any terms affecting their divorce. The most important exeption are factors that affect the welfare of minor children.

The amount of court ordered child support is determined by applying a percentage to the gross incomes of both parents, according to the number of children in the family. In addition to earnings reported on the most recent Federal Income Tax form, income will include worker’s compensation, disability benefits, unemployment insurances, social security, veteran’s benefits, pension and retirement benefits, fellowships and stipends and annuity payments, as well as certain investment income. The Court may also include income from other sources.

Certain deductions from income are allowed including alimony or maintenance actually paid; child support paid for other children, and FICA.

Once the combined parental income is determined, the non-custodial parent will be required to pay the following percentage to the parent who has custody:

 

  • 17% for One Child
  • 25% for Two Children
  • 29% for Three Children
  • 31% for Four Children
  • No Less than 35% for Five or More Children

What is equitable distribution?

Equitable distribuition is a legal term for the method in which marital property is divided after a divorce.

In New York State, property earned by either spouse during the marriage is considered marital property. Each spoouse is entitled to one half of the total value of marital property upon divorce.

Disputes sometimes arise as to whether property was “earned” or was acquired by some other method. Another common reason for dispute is the amount of each spouse’s non-cash contribution to the marriage. Yet another issue of possible contention is a party’s contribution to a spouse’s educational degree of professional attainment.

Through a legal mechanism called “discovery” each spouse is entitled to all documents, records, receipts, statements and all other information that may impact the outcome of the case.

Litigating parties are usually taken aback when very intrusive demands are made by the other spouse for what may normally be consider private and confidential records.

 

What a judge is most concerned about

Before a divorce may be granted, there are usually five basic issues that must be resolved. They are:

1) Alimony or spousal support;

2) Property division; and, if there are children:

3) Custody;

4) Visitation; and

5) Child support.

If a divorcing couple agrees on all five of these issues in writing, they will be granted an uncontested divorce and avoid adversarial divorce litigation. Conversely, if there is disagreement on any of the basic issues, a contested divorce exists. When a divorce is contested, the couple may proceed through all phases of litigation including trial before a family court judge. The couple may also voluntarily seek alternative dispute resolution methods like mediation or collaborative divorce or they may be ordered by the court to do so. It is important to consult with an attorney before deciding which method is right for your situation. Divorce Litigation The actual legal process for getting a divorce varies by state. However, most marital termination proceedings usually include the some version of the following components: Petition – The filing of the summons and complaint formally initiates divorce proceedings.

Summons & Copmplaint – Formal notice to your spouse about your intent to pursue court action to obtain a legal divorce. The response is the other parties’ acknowledgement the divorce procedure has begun.

Legal Process: Some Definitions

 

  • Motions – A formal request to the court to order some type of action before the trial. For example, in abuse situations it is not uncommon to file a motion for a protective order or restraining order.
  • Discovery – The phase of the proceeding where each side gathers information in support of their legal arguments. It is an important phase in contested actions, particularly if you belief your spouse is hiding assets. It includes depositions and interrogatories.
  • Hearings & Temporary Orders – In some instances there are questions or situations that need to be temporarily resolved before the final divorce agreement is reached or ordered by the court. For example, if the couple can’t agree about where their children should live during the process they would ask the judge, during a hearing, to decide. Temporary orders generally remain in effect until the final decision is made at the end of the divorce process.
  • Trial – A critical court appearance before the judge where the case will be decided. The trial may include witnesses, friends, financial experts, psychologists, as well as other types of evidence including financial records.
  • Judgment – The final decision is a judgment. It is not a verdict in the sense the judge assigns blame to either party. It is simply a legal statement of the judge’s rulings on all the issues in question during the trial, such as custody, visitation, support and property division.

 

 

Purchasing Property in Turkey

REAL ESTATE ACQUISITION BY FOREIGN REAL PERSONS IN TURKEY

Real Estate law is regulated within the Civil Code according to the Turkish regulations. It is intended to provide a wide understanding on property purchasing and selling procedures in Turkey, either for real and legal persons within this article.

Real estate acquisition by foreign real and legal persons has been regulated in the article 35 of the Land Registry Law numbered 2644 with law numbered 5444 and dated December 12,2005 which was published in the Official Gazette of 26046 numbered and dated January 7,2006. New fundamental principles were regulated with this new law for acquisition of real estate by foreign real persons and trade companies having a legal personality and established in foreign countries according to the laws of these countries in Turkey.

New form of the article 35 of the Land Registry Law is as follows:

“With the reservation of reciprocity and compliance with legal restrictions, a foreign real person can acquire real estate for the purposes of using as residence or business aims in Turkey that are separated and registered for these purposes in the implemented development plans or localized development plans. The same condition shall be stipulated in the establishment of limited real rights on real estate. The total area of the real estate and limited real rights on real estate that a real person of foreign nationality can acquire all over the country cannot exceed 25,000 m2. Within the same conditions set out in this paragraph Council of Ministers is authorized to increase the area up to 30 hectares.

Companies having a legal personality established in foreign countries according to the laws of those countries can acquire real estate and possess limited real rights on real estate in Turkey according to the provisions of special laws.

In case of establishing a mortgage in Turkey in favor of foreign real persons and trading companies having legal personality established in foreign countries; which were laid down accordingly to the laws of those countries the conditions and restrictions set out in first and second paragraphs shall not be applied.

With the exception of foreign real persons and trading companies having a legal personality established in foreign countries, no one can acquire real estate and limited real rights on real estate in Turkey.

As for the real estate acquired through legal inheritance by citizens of a country that have reciprocity with the Republic of Turkey, the conditions and restrictions set out in the first paragraph shall not be applied. As to the real estate acquisition by means of transactions depending on death apart from legal inheritance, the conditions and restrictions set out in the above paragraphs shall be applied. Real estate and limited real rights on real estate acquired through legal inheritance by citizens of countries that do not have reciprocity with the Republic of Turkey shall be liquidated after their transfer transactions are performed.

De jure and de facto circumstances shall be taken as the basis in determination of reciprocity. In implementation of this principle for the citizens of countries that have not granted land ownership rights, it’s stipulated that the rights granted by a foreign country for real estate acquisition to its own citizens should also be granted to citizens of the Republic of Turkey.

The Council of Ministers is authorized to determine the places where foreign real persons and trading companies having a legal personality established in foreign countries according to the laws of those countries cannot acquire real estate and limited real rights on real estate within the areas in terms of irrigation, energy, agriculture, mining, and protected areas, and cultural featured areas and special protection areas and untouched areas due to flora and fauna features, strategic areas due to public interests and country security by means of the proposals of relevant public institutions and organizations with registry based coordinated maps and plans, and the rate of the areas where foreign real persons can acquire real estate of not more than 5 per cent according to the provinces and provinces’ areas. Proposals of the public institutions and organizations within these scope shall be examined, appreciated and submitted to the Council of Ministers by means of a commission that carries out studies within the authority set out in this paragraph and constituted of relevant representatives of administration in the structure of the Ministry that the General Directorate of Land Registry and Cadastre is related to.

Map and coordinate values concerning the military forbidden zones, military and private security zones and strategic zones that are determined after the enforcement of this law and their alterations shall be given without any delay by the Ministry of National Defense to the Ministry that the General Directorate of Land Registry and Cadastre is related to.

The parcels needed to be expropriated or to be annotated on the land register due to be in the areas determined in the above paragraphs shall be notified by relevant institutions to relevant Land Registry Offices.

The real estate and limited real rights on real estate acquired contrary to the provisions of this article or determination of misuse according to the purpose of acquisition without legal necessity shall be converted to value and paid to the owner of of said real estate unless the real estate is liquidated by the owner within the period given by Ministry of Finance.”

RECIPROCITY PRINCIPLE

Within the new regulation, instead of exact equivalent implementation of the reciprocity principle, it’s stipulated that the rights granted by a foreign country to its own citizens or trade companies having a legal personality, and established according to its own laws should also be granted to the citizens and trade companies of the Republic of Turkey.

The Council of Ministers expressed what should be understood from the reciprocity principle in its decision dated May 29, 1940 and numbered 2/13394. According to this decision, in addition to legislative regulation of the reciprocity principle, practical applicability of it is also required for its existence. By this decision, in which it’s taken into consideration that reciprocity in law will not indicate an actual situation, restrictions encountered in a foreign country by the citizens of the Republic of Turkey, in case of their application, are wanted to be taken as a basis in implementation of reciprocity. Therefore, for the existence of reciprocity between our country and a foreign country about real estate acquisition, reciprocity must be both in law and in practice. According to this principle, for real estate acquisition of a foreign country’s citizen or trade company in our country, the citizens and trade companies of the Republic of Turkey should also have the right to acquire real estate in this foreign country and this right must be accepted by laws and must be practically applicable.

EXCEPTIONS OF RECIPROCITY PRINCIPLE

Although the first condition is reciprocity for real estate acquisition of foreign real persons in our country, the reciprocity principle has some exceptions in terms of real persons.

These exceptions are as follows:

a. Since haymatlos persons have no state citizenship, there isn’t any state to decide about reciprocity. For this reason, haymatlos persons are exempted from the reciprocity principle.

b. According to article 7/2 of “Convention on Legal Situation of Refugees” dated July 28, 1951 and ratified by Turkey with the law dated August 26, 1961 and numbered 359, refugees are exempted from the reciprocity principle in a country after three years of residence. Refugees in Turkey are also subjected to the same provision. It is enough for refugees to prove this situation with an official document for exemption.

c. According to the article 8/E of the Law for Encouragement of Tourism numbered 2634, foreign real and legal persons who want to make investment for tourism objective in Turkey, can acquire real estate by the decision of the Council of Ministers in tourism areas and centers being exempted from reciprocity principle and restrictions formulated for foreigners.

LEGAL RESTRICTIVE PROVISIONS

The second condition for real estate acquisition of foreign real persons in Turkey is to comply with restrictive provisions involved in law. Some restrictions are involved in our laws concerning real estate acquisition by foreigners.

These restrictive provisions are as follows:

a. According to regulations involved in the Military Forbidden Zones and Security Zones Law numbered 2565 which restricts geographically real estate acquisition by foreigners in our country, it is not possible to sell, transfer and rent real estate located within military forbidden zones and security zones, to foreign real and legal persons.

b. According to article 35 of the Land Registry Law numbered 2644, foreign real persons can not acquire real estate measuring more than 2.5 hectares in our country, however for acquisition up to thirty hectares, a decision of the Council of Ministers is required. Legal inheritance is an exception of this rule.

REAL ESTATE ACQUISITION BY FOREIGN COMPANIES WHICH HAS A LEGAL PERSONALITY IN TURKEY

Companies having a legal personality established in foreign countries according to the laws of those countries can acquire real estate and possess limited real rights on the real estates in Turkey according to the provisions of some particular laws.

Relevant laws are as follows;

– Law for Encouragement of Tourism numbered 2634

– Petroleum Law numbered 6326

– Industry Regions Law numbered 4737

In case of establishing a mortgage in Turkey in favor of foreign real persons and trading companies having a legal personality established in foreign countries according to the laws of these countries the conditions and restrictions set out in first and second paragraphs shall not be applied.

With the exception of foreign real persons and trading companies having a legal personality established in foreign countries according to the laws of those countries, no one can acquire real estate and limited real rights on real estate in Turkey.

REAL ESTATE ACQUISITION BY FOREIGN CAPITAL COMPANIES

The expression of “foreign capital companies” is usually confused with the expression of “foreign company”.

First of all, it should be stated that “foreign capital companies” are established according to the provisions of the Turkish Trade Law in Turkey and enrolled in the Turkish Trade Register. In other words, these countries are subjected to the legal provisions of the Republic of Turkey. Only, the whole or part of their capital belongs to foreign real and legal persons. Availability of foreign shareholders within the company will not include it within the status of foreign legal personality; because nationality of the company and nationality of its shareholders are different matters.

The Law for Encouragement of Foreign Capital numbered 6224 and dated January 18, 1954 was repealed by the Foreign Direct Investment Law numbered 4875 and dated June 5, 2003 that entered into effect being published in the Official Gazette numbered 25141 and dated June 17, 2003. New provisions were adopted to encourage and increase foreign direct investments, to the protect rights of foreign investors, and to transform the permission and ratification system to informative systems in realization of foreign investments.

With regard to the subject, a circular numbered 1363-100/841 and dated August 7, 2003 was announced to all our units through our regional directorates and it was stated that implementation would be carried out within the framework of the following statements.

By the Foreign Direct Investment Law numbered 4875, foreign investors are subjected to equal treatment with domestic investors; permissions and ratifications like investment permissions, company establishment permissions, were removed. Moreover, companies having a legal personality that foreign investors participate in or establish, in our country, are allowed to acquire real estate or limited real rights in areas where acquisition of these rights is allowed for Turkish Citizens.

Companies established according to the repealed Law numbered 6224 or that will act according to the Law numbered 4875 which is about the activities of foreign capital companies in our country, are considered as companies of the Republic of Turkey, according to the criteria of establishment place or administration center. For this reason, real estate acquisition and other demands concerning land register of foreign capital companies that either obtained activity permission according to the repealed Law for Encouragement of Foreign Capital or will act according to the Foreign Direct Investment Law numbered 4875, are concluded by the relevant Land Registry Offices implementing the same methods and rules as for companies established according to the Turkish Trade Law, after examining authorization documents given by the Trade Register Authorities that indicate the competent person and competence for real estate acquisition of the company.

TRANSFER

It is free to transfer through banks and private financial institutions, revenue and value of sale earned from real estate and real rights acquired by foreigners with or without exchange of foreign currency.

AUTHORITY OF APPLICATIONS

By article 26 of the Land Registry Law numbered 2644, the duty and authorization to regulate contracts concerning property and real rights excluding property were given to Land Registry Offices.

Foreigners who want to acquire real estate or benefit from real rights apart from property will make their applications to the Land Registry Office where the real estate is located.

Detailed information about the subject can be provided from the General Directorate of Land Registry and Cadastre.

REQUIRED DOCUMENTS FOR APPLICATION

There is no difference between Turkish citizens and foreigners in terms of required documents for application.

Real Persons:

a. Title deed of the real estate, if available, otherwise a document indicating the city block and parcel of the real estate or verbal statement of the owner.

b. Identity card or passport of foreigner given by his/her own country and two small photographs.

c. If the person applying is a representative, a power of attorney of the representative, and identity card with photograph, two small photographs of the representative, and if some of the purchasers are not present during the transaction, identity card with photograph, two small photographs and power of attorney of the representatives that represent the purchasers, are required.

Legal Persons:

a. Companies established according to the Foreign Direct Investment Law numbered 4875 will show a competence document given by Turkish Trade Registry, a document given to the person assigned basing on this, and signatures certificate.

b. Foreign trading companies established in foreign countries according to their laws are required, in compliance with the legislation of their country, to show a document having the effect of a competence document given by relevant authorities.

With regard to charges and taxes required to be paid in the course of transactions, there is no difference between persons of foreign nationality and citizens of the Republic of Turkey. However, when asking the competent military post to determine whether the real estate demanded by a real or legal person of foreign nationality is located outside Military Forbidden Zones and Security Zones or not, if any check in the field is needed to mark on map of 1/25000 scale where the real estate is, a kind of service value will be paid according to the transaction named “showing the property lawproperty lawyerreal estate lawyerturkish property lawturkish real estate lawturkish real estate lawyer

Maritime Law

Shipping Maritime Law
Ship Finance
As Ketenci&Ketenci, we are involved in all aspects of asset financing for clients in the shipping globally advising a diverse range of international clients including financial institutions, owners and operators.

Legal advices provided to our clients covers the non-contentious shipping transactions including ship finance and leasing transactions, corporate structures for ship ownership and joint ventures, complex structured financings, ship sale and purchase, ship construction, ship and securities including mortgage registration.

It is also notable that due to the economic recession taken place recently, we have also been actively involved in advising financial institutions and ship owners in relation to the restructuring of existing financings.

The shipping finance practice of Ketenci&Ketenci consists of following practices

• Financings and other secured debt financings,
• Financings provided by foreign and domestic financial organizations,
• Operating leases of either cross-border or multijurisdictional,
• All sorts of securities (available in the registered area of ships) of ship operating leases,
• Financial guarantees of public and privately placed debt,
• Purchase and sale transactions on behalf of our clients,
• Negotiation of purchase agreements with manufacturers,
• Process Agency.

In addition to ship finance, we also offer a comprehensive advice and unique level of service on contentious matters related with shipping law.

Recent & Current Civil Rights Cases

Reverse Racism, anti-Semitism and Discrimination Physical within the US Department of Justice’s Immigration & Naturalization Service

 

  The case of Caryl Leventhal v. Janet Reno and the US Department of Justice involves an employee of the United States Immigration and Naturalization Service who suffers from Multiple Sclerosis.  As a newly hired employee, she was brutalized by her superiors because of being white and Jewish in a position that for decades, was filled solely by African Americans.  When she became seriously ill with an Acute exacerbation of Multiple Sclerosis, she was denied sick pay and marked AWOL (absent without official leave).  This was in spite of her managers receiving doctor’s notes and MRI reports from neurologists.  While gravely ill, Ms. Leventhal was terminated for showing “Poor dedication to her job.” Her immediate replacement was an African American.

Disability Discrimination

Currently representing presenting Keith Toto, a young man wanting nothing more than to have a public apartment hunting firm find him him a rental unit in New York City.  When the firm discovered that Mr. Toto was deaf, their broker declined to work with him on the grounds that they didn’t rent to people with disabilities.  On January 18, 2000, this case appeared in the NY Journal News with the Associated Press contributing details.

Criminal Justice System Cover-ups

  Involved in the Estate of Jose Santos, Jr. v. City of New York. Mr. Santos was found dead in his Rikers Island Jail cell. The official autopsy lists the cause of death as a suicide, although the family’s independent autopsy indicates otherwise. The matter has received extensive press coverage in the Spanish  and mainstream media in New York City.

Police Brutality

A high-profile case of police brutality, involving my client, Nathaniel Howard, who was a victim of brutality and cover-up.  He was found not guilty of all charges.  An article about this matter is expected soon in the Village Voice.

Previous Civil Rights Cases: 

Election Process Integrity

  Represented four insurgent candidates against the Brooklyn Democratic Party and the City Board of Elections. Brought this matter to federal court, which was a novel strategy up to that point. The Brooklyn federal court ruled in my favor and three of the candidates were ordered on the primary ballot.

  Involved in a far more well known matter, that is the Brooklyn Primary Cases. The primary ballots throughout the Boroughs of Brooklyn and Queens were not operating properly. I was the first to file in federal court, followed by many other frustrated candidates. In a unique decision, District Judge David Tragger ordered a continuation of voting in districts affected. However, the Second Circuit Court of Appeals, overruled him.

Grassley Advances Civil Rights Tax Reform

WASHINGTON – Sen. Chuck Grassley, chairman of the Committee on Finance, today won near-final passage of reforms to end unfair taxation in civil rights cases.

“Tax relief gets the headlines, but part of tax relief is tax fairness,” Grassley said. “It’s clearly a fairness issue to make sure people don’t have to pay income taxes on income that was never theirs in the first place. That’s common sense.”

Grassley was the lead Senate negotiator working on a House-Senate conference committee to reconcile differences between each chamber’s manufacturing tax and trade bill. Today, the conference committee is close to finishing its work. By 5 p.m., the conferees will finish voting on the final conference report. If they approve it, as expected, their action will clear the conference report for consideration in each chamber later this week. Grassley secured the inclusion of the civil rights provision in the conference report, which can’t be amended.

Grassley has long worked to end a tax law fluke that forces plaintiffs who win settlements in civil rights cases and other lawsuits to pay income taxes on parts of the settlements they never see – in some cases even owing thousands of dollars more than they win. Several Iowa lawyers have written to Grassley out of concern for their clients in these cases.

The Grassley provision will, in effect, exclude from a plaintiff’s taxable income legal fees in certain civil rights suits, including those alleging job-related discrimination, and other lawsuits.

“If we don’t fix this law, it could have a chilling effect on discrimination cases,” Grassley said. “Legitimately wronged people could have little recourse. An out-of-whack tax system is in danger of negating the value of discrimination lawsuits.”

Domestic Violence Lawyer Fairfax County VA Drug Charges Attorney

 

Any criminal charge — for reckless driving, DUI, assault, drug possession, domestic violence or any other crime — is a serious matter. Being charged or even investigated can be a frightening experience, and you need an advocate to help you through it.

We are dedicated to assisting our clients at every stage of the criminal defense process. At the onset we approach every case as if it will be tried, exploring all facts and options. If, however, after being fully advised of your options you plead guilty, we will advocate forcefully for you during sentencing and beyond if necessary.
Contact us to discuss how we can defend you against criminal charges.

Treating Each Case as Unique

The idea that a standard set of laws applies to everyone is misguided. For this reason, some lawyers have gotten in the unfortunate habit of seeing each case as an instance of a general pattern.

Each case, however, is different, involving a different set of facts and circumstances. The proper role of your criminal defense lawyer is to tell your side of the story about the unique facts of your case in light of the laws that apply to everyone.

No matter how “routine” your case may appear, our attorneys at Clark & Allen, PC, are devoted to doing a thorough investigation of the facts in preparation for taking your case to trial. Maintaining your readiness to go to trial can also be an effective negotiating/bargaining tool.

Of course, we may be able to convince the prosecutor to drop the charges or offer you a genuinely fair plea bargain that is acceptable to you. We will certainly pursue these and other alternatives to a criminal trial, in light of the circumstances and your informed decisions.

If you are facing charges for alleged reckless driving, theft, domestic violence or any other criminal offense, get the legal attention you need right away. Contact us today.

Accessible Northern Virginia Lawyers

Based in Leesburg with a branch office in Tysons Corner, we offer high quality criminal defense services to clients in Loudoun and Fairfax counties and throughout Northern Virginia. We are available to visit with clients in jail or prison and have the flexibility to schedule office appointments outside of business hours as needed.

We offer a free initial consultation to prospective criminal defense clients and accept all major credit cards for payment for our services.