Legal Question in Real Estate Law in New York

I have discovered and faced several problems with my property in past few months. As a result of those problems, I lost two (2) tenants and incurred a huge financial impediment. In my attempt to refinance the property, I was informed that the property does not have a permanent certificate of occupancy (COO) and the temporary certificate of occupancy (TCO) expired in 2006. A property without a certificate of occupancy (permanent or temporary) can not be occupied and is also subjected to violations by the Department of Building.

When I met with the plan examiner and commissioner at the Department of Building (DOB) to inquire about obtaining a permanent COO, I was informed that the property was not built in compliance with the city codes. Apparently, the contractor and architect incorrectly constructed the property by doing the following:

(1) Stairs were built four (4) feet beyond the property line;

(2) Gate surrounding the property is five (5) feet (maximum height allowed by the city is four (4) feet);

(3) Gate is also on city property;

(4) Garage is built to too large in width;

(5) Curb for the driveway was never cut; and

(6) Bricks on the property need to be tuck/pointed.

The plan examiner at the DOB suggested that I visit the Department of Transportation (DOT) and request a revocable consent for the stairs, garage and fence.

After meeting with the DOT, I was informed that the process to rent the sidewalk from the city can take approximately six months and I would need to hire an architect to provide project plans to DOT, which is subject to approval by the city�s design commission. Unfortunately, the garage and fence will not qualify for a revocable consent.

This rigorous process is also a huge expense (approximately over $10,000, which includes application fee, advertisement in the paper and security deposit), plus additional costs to hire an architect, provide insurance for utilizing city property and an annual fee to rent the sidewalk from city (fee is determined by the DOT).

The other option is to hire an architect and a builder to fix the problems with the property and request a COO. This is also a financial constraint, but is the only secured option in obtaining a permanent COO.

However, not having a COO is not the only issue with property. Unfortunately, there is also a mechanic�s lien on the property from the builder (lien is approximately 60k). Apparently the builder filed a lien, claiming that he is owed money from constructing the project.

I spoke to several attorneys and real estate individuals, and apparently the property is not sellable without a completed COO.

After discovering the aforementioned issues, I also realized that Broker Price Opinion provided by lender (a servicing company) for the step modification that gave me last year is flawed under the following sections: marketability of subject, repairs and items to be repaired. Under all three sections, the broker indicated no repairs or not applicable.

I want to request for my lender to reevaluate my loan and reconsider my request to be removed from a step modification to a fixed rate modification.

What should I do in this situation? Please HELP!!!


Asked on 7/19/10, 1:25 pm

1 Answer from Attorneys
Arnold Nager Arnold H. Nager, Esquire

The survey should have disclosed most of these issues. Banks usually require a COO before committing to a loan. Finally, your title insurer should have investigated these issues prior to closing. Speak to your attorney who represented you at the closing. He/she will tell you how to file a claim under your title insurance policy.

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Answered on 7/22/10, 6:08 pm


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