|
INDEX
General Practices
G-1
Building Department Notice of Pendency
G-2 Deed
from Fiduciary - Consideration
G-3
Delivery Question
G-4
Expired City of New York Unsafe Building Notice of Pendency (Lis
Pendens)
G-5
Financing Statements UCC-1 (s)
G-6
Guardian - Conveyance By a Guardian -Mental Hygiene Law
G-7
Infants, Incompetents - Deed By
G-8
Limited Partnership
G-9
Merged Mortgage & Fee - See also L&J-6
G-10
Notice of Pendency - Open Mortgage or Mechanic's Lien
Discharged - See also L&J-6
G-11
Notice of Pendency - Unsafe Building Violations (Lis Pendens)
G-12
Publication of Judicial Sales in Five Counties of New York
City or Nassau County in NY Law Journal
G-13
Sheriff's Execution Sales - Prior Judgments
G-14
Stock Replaced by Real Estate
G-15 Tax
Sales - Right of Re-Entry
G-16 Tax
Titles
Corporations
C-1
Corporate Seal
C-2
Corporation Deed to a Company Officer
C-3
Corporation - Deeds Dated Prior to Incorporation
C-4
Franchise Taxes
C-5
Interlocking Directors of Stockholders
C-6 Old
Corporations
Descriptions and Boundaries
D&B-1
Description - Defect Caused by Change in Street Lines
D&B-2
Description - Variance Between Streets on Filed Map and in
Particular Description
D&B-3
Effect of "Same As" Recital in Deed
D&B-4
Fence Variations
D&B-5
Insuring Gores in Record Title
D&B-6
Party Walls
D&B-7
Reciprocal Driveway Easements
D&B-8
Variation Between Record Description and Tax Map
Estate Administration and
Taxes
E-1
Administrator's Deed - Bond
E-2
Conveyance in Contemplation of Death
E-3
Federal Estate Taxes
E-4
Inheritance by Surviving Spouse
E-5 New
York Estate Tax - Death After July 1, 1978
E-6
Posthumous and Afterborn Children
E-7 Power
of Sale - Ancillary Letters of Probate
E-8
Probate of Wills
E-9 Proof
of Heirship
E-10
Proof of Heirship & Death of Joint Tenant
E-11
Proof of Payment of Legacies
E-12
Public Administrator's Sales
E-13
Public Administrator's Sales - Acting in Fiduciary Capacity
Liens and Judgments
L&J-1
Federal Tax Liens
L&J-2
Federal Tax Liens Filed Between Date of Mortgage and Recording
L&J-3
Judgments Against Partners
L&J-4
Judgments Entered Between Date of Deed or Mortgage and
Recording
L&J-5
NYC Liens and Judgments Duration
L&J-6
Priority of a Purchase Money Mortgage Over Judgments Against
the Mortgagor
L&J-7
Surety Bond Liens - When Disregarded
Mortgages and Foreclosure of
Mortgages
M-1
Foreclosure
M-2
Foreclosure in Federal Courts
M-3
Foreclosure - Parties - Successors of Deceased Mortgagee
M-4
Assignments of Judgment to United States of America
M-5
Mortgage Satisfaction by Affidavit RPAPL Section 1921
M-6
Release in Lieu of Satisfaction of Mortgage
M-7 Small
Ancient Mortgages
M-8
Unrecorded Mortgage
General Practices
G-1 BUILDING DEPARTMENT NOTICE
OF PENDENCY (LIS PENDENS)
A Notice of Pendency to enforce Building Department violations
will 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 recites only a nominal
consideration no exception as to adequacy of consideration
will be raised if the deed is on record for more than 10
years.
G-3 DELIVERY QUESTION
Where there is a time lapse between the date of a deed and the
date of its recording, no objection will be raised where the
deed has been on record for more than ten (10) years. If the
deed has been on record for ten (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 thirty (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 will
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 thirty (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 one year may be passed if:
A. Within one 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 one year from the
date of filing of the Unsafe Building Notice with nothing
found:
1. against the name of the record owner(s) of the property at
the time of the filing of the Notice of Pendency, or any
person or entity who acquired title to the premises during
said year, for money judgments or warrants docketed in favor
of the City of New York Building Department or Department of
Housing Preservation and Development;
2. against the subject premises for charges fees or expenses
posted in the office of the Department of Buildings related to
the Unsafe Building Notice; and
3. against the subject premises for Relocation Liens filed by
the Commissioner of Housing Preservation and Development for
relocation services in connection therewith.
G-5 FINANCING STATEMENTS UCC-1
(s)
Financing Statements will be passed where they are on file for
more than five(5) years and there was a change of ownership or
there would be a change on the closing. Where, however, the
transaction was to insure a mortgage and there was to be no
change of ownership, then the Financing Statements will be
expected unless they are on file for more than five (5) years
and 30 days and have not been renewed.
Exception: Financing Statements are effective until terminated
when filed against a cooperative apartment unit and/or the
shares and interest of a leasee under a proprietary lease of a
cooperative corporation.
G-6 GUARDIAN CONVEYANCE BY A
GUARDIAN - MENTAL HYGIENE LAW
Note: The entire structure of the Mental Hygiene Law was
changed effective April 1, 1993. Section 77 and 78 which dealt
with conservators and committees was repelled on the same date
that Section 81 became effective.
The persons acting as conservators or committees may continue
to perform under the existing orders until modified or
abrogated by a court. Any other statutes referring to
conservators or committees are deemed to refer to guardians.
Among the things which have to be considered:
A. The courts which have jurisdiction under the new law are:
1. In New York City - the Supreme Court
2. Outside New York City - the County Court
3. The Surrogates Court where a guardian is needed to receive
money or property.
B. There are provisions for hearings and trials where
necessary. The persons who may be involved include:
1. The affected party.
2. Members of the family.
3. Heirs designated by will.
4. A Court appointed Evaluator.
5. In certain circumstances, a Special Guardian.
The affected party has the right to have counsel.
The petitioner has the burden of proof by clear and convincing
evidence of the necessity to appoint a guardian or
co-guardians.
The basic policy of law is to provide for the least
restrictive order possible.
There is provision for a bond unless waived.
The appointment of a guardian does not create the presumption
that the incapacitated party is not required to consent to
property transfer.
G-7 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
will 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-8 LIMITED PARTNERSHIP
When a limited partnership takes title to real estate, the
failure to commence or to complete the publication required by
the Partnership Law before title passes to the partnership may
be disregarded if the publication is ultimately commenced and
completed.
G-9 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
betaken from the last owner that no demand has been made for
payment, that no payment has been made of principal for
interest, and that such last owner has not acknowledged the
debt.
G-10 NOTICE OF PENDENCY - OPEN
MORTGAGE OR MECHANIC'S LIEN DISCHARGED
If (1) a judgment has not been entered, or if entered, was
entered more than six years ago and (2) a receiver has not
been appointed, or if appointed, has been discharged by court
order, and (3) the mortgage or mechanic's lien has been
satisfied prior to the pending transaction, the notice of
pendency in an action to foreclose the mortgage or mechanic's
lien will be disregarded.
G-11 NOTICE OF PENDENCY -
UNSAFE BUILDING VIOLATION (LIS PENDENS)
On an unsafe building violation where the violation for which
the notice of pendency was filed is no longer in effect
against the building and title came through an in rem sale
through the City of New York subsequent to such notice of
pendency, the notice of pendency will be deemed merged and
will not be deemed an objection of title.
(Note: This standard is not to be followed where there is a
conveyance by the City to any of the parties permitted to
acquire title pursuant to Sec. D17-25.0of the N.Y.C.
Administration Code.)
G-12 PUBLICATION OF JUDICIAL
SALES IN THE FIVE COUNTIES OF NEW YORK CITY OR NASSAU COUNTY
SALES IN NEW YORK LAW JOURNAL
Where 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's
Court Procedure Act for the publication of Surrogate Court
citations, (with the exception of notices under Section 1801
of the Surrogate's Court Procedure Act) such publication will
be deemed publication in a proper newspaper.
G-13 SHERIFF'S EXECUTION SALES
- PRIOR JUDGMENTS
No objection will 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-14 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-15 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 will be
passed even though 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, will not be
disregarded.
G-16 TAX TITLES
When title to property is made through a recorded tax deed
properly describing the property under examination, and ten
years have elapsed since the recording of such deed, the title
will 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 question where 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 the 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 deeds 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 of 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
When franchise taxes accrued more than 10 years ago against a
corporation which has been dissolved within the past ten years
the franchise taxes which are more than ten years old may be
disregarded, provided premises have been, or are being,
conveyed to a purchaser of value. If such dissolved
corporation is the present owner proof of payment of taxes
accruing subsequent to January 1, 1948 should be obtained. As
to undissolved corporations all franchise taxes accruing
during the period more than ten years last past may be
disregarded provided title has passed, or is being conveyed,
to a purchaser of 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
question where title has reached a purchaser for value.
C-6 OLD CORPORATIONS
Where a corporation has been out of title and the property has
been improved for over ten (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 or 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 will 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 into the grantee describes the property by lot on
a filed map followed by a particular description which makes
no reference to the map and thereafter, there has been a
change in the street line of the street from which the
beginning point is monumented and the particular portion of
the description in the deed does not describe the property
with reference to the new street line, but coincides with the
property location according to the map, the title will be
insured without requirement of 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 offences, 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 twelve inches.
D&B-5 INSURING GORES IN RECORD
TITLE
Where there is a gore of less than one inch between two lots,
contiguity between the two 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 two or more
plots would make them contiguous except for the fact that the
point of beginning in one or more of the descriptions is
located opposite the center of a party wall, the monumentation
will be disregarded and contiguity will 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 two feet, the attempted location at the center
of the party wall will 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 shall 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 will be insured and any defect in its creation by the
common owner disregarded.
D&B-8 VARIATION BETWEEN RECORD
DESCRIPTION AND TAX MAP
Where there is a variation between the recorded description
and a tax map upto one inch, no question shall be raised.
Estate Administration &
Taxes
E-1 ADMINISTRATOR'S DEED -
BOND
A deed made by an administrator pursuant to EPTL 11-1.1 (where
the decedent died on or after June 1, 1965) will be insured
without exception as to compliance with SCPA 805 (3), if:
A. a further bond in the amount of the proceeds is filed
before the proceeds are distributed; or
B. a further bond is dispensed with by the court; or
C. the existing bond was fixed in the amount that included the
full value of the real property; or
D. an accounting has been approved showing the property
disposition of the proceeds; or
E. acknowledged consents, releases or deeds are obtained from
all distributees; or
F. a proper judicial decree establishes the validity and
effectiveness of the deed.
E-2 CONVEYANCE IN
CONTEMPLATION OF DEATH
Where, within three years after a conveyance is recorded the
grantor dies, no estate tax question need be raised before the
property has been acquired by a subsequent purchaser for
value.
E-3 FEDERAL ESTATE TAXES
A. The question of Federal Estate Taxes may be disregarded
where the New York Estate Tax proceeding against a former
owner shows that the gross estate of the decedent was of the
value of not more than $108,333.00 ($115,000.00 for decedent's
estates after 6/9/94). An estate is exempt from Federal estate
taxes when its value is less than $600,000.00 where the
decedent died after December 31, 1986.
B. The lien of a 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 of a Federal 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. The lien of a 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
directly 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 Taxes 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 Taxes. The United States Government is
to be named as a party defendant for any other proper reason
which may exist in the title.
E-4 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 proceedings or by affidavit, and
b. The property had been improved for more than fifteen years,
and
c. The deed from the surviving spouse or from his or her
heirs, devisees or successors in interest has been recorded
for more than fifteen years.
B. DEATH OF DECEDENT BETWEEN MARCH 2, 1964 AND SEPTEMBER 1,
1992
1. When decedent died 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
because the estate was less than $25,000, deeds should be
obtained from the surviving parents or parent.
However 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 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 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 has been improved for more than ten years, and
c. The deed from the surviving spouse or from his or her
heirs, devisees or successors in interest has been recorded
for more than ten years.
C. DEATH OF DECEDENT AFTER SEPTEMBER 1, 1992
When decedent died 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-5 NEW YORK ESTATE TAX -
DEATH AFTER JULY 1, 1978
A. The lien of the New York Estate Tax may be passed where the
decedent died a resident of New York State on or after July 1,
1978, and a satisfactory affidavit establishes that the gross
estate, including the subject real property, is not more than
$108,333 ($115,000 after June 9, 1994).
B. The lien of the 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 of the 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 of the 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-6 POSTHUMOUS AND AFTERBORN
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 thirty years have elapsed
since the death of death of the decedent, or if ten years have
elapsed since a conveyance by the devisees to a bona fide
purchaser.
E-7 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 a 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-8 PROBATE OF WILLS
A. When title is made through a will and the estate is out of
title and the petition for probate, though not made by a blood
relative of the decedent, shows that the heirs are direct
descendants or brothers or 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 five years have elapsed since the
probate of the will.
C. Proof of Heirship of 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-9 PROOF OF HEIRSHIP
When a deed from the heirs of a former owner who died
intestate has been recorded for more than ten years, and the
only proof that such grantors are the only heirs is 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-10 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 ten 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 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-11 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-12 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 of the depository of the proceeds of sale.
E-13 PUBLIC ADMINISTRATOR'S
SALES - ACTION IN FIDUCIARY CAPACITY
If an intestate died on or after June 1, 1965, title made
through sales by the 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 6, 1990 may be disregarded upon the
execution and delivery of a deed, lease or mortgagor affecting
the property of the taxpayer to a Purchaser (as defined in
Section 6323 of the Internal Revenue Code) or a Mortgagee
after six (6) years and thirty (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 six (6) year and thirty (30)day
period. If the notice of Federal Tax Lien was refiled with the
six (6)year and thirty (30) day period from the date of
assessment, the notice of Federal Tax Lien may be disregarded
after ten (10) years and thirty (30) day shave 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 apart of the purchase money, the lien
of the mortgage upon the real property is superior to the lien
of a previous judgment against a purchase money mortgagor
wholly or partly for a sum of money or directing the payment
of a sum of money against the purchaser. 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 IN FEDERAL
COURTS
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 compliant 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 Statute (28 U.S. Code Sec.
2002) which reads as follow: "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 or 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 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 than six years
have elapsed since the delivery of the referee's deed.
M-4 ASSIGNMENTS OF JUDGMENTS
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 will be omitted as an
objection to title.
M-7 SMALL ANCIENT MORTGAGES
A mortgage in the face amount of $15,000 or less which matured
more than thirty years ago and which is not recited in the
chain of title for 20 years or more, may be disregarded upon
an affidavit of non-payment of principal or interest or of
demand of owners for 12 years, provided that the present owner
or an 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 maybe passed on proof that for 6 years or more
last past no principal or interest has been paid or demanded
and no knowledge of said unrecorded mortgage was had by the
owners. Where such recitals is contained in the last deed of
record satisfactory proof will be required to dispose of the
objection. |
