How Many Persons Have the Right to Be in an Apartment — And for How Long?

Your realtor handles a lot. They advise you on when to list, how to price, how to stage, and what needs attention before showings begin. A good realtor earns their commission. But realtors are not attorneys, and they are not expected to be. There is a separate checklist, a legal one, that most sellers never run before they list. Skipping it does not always cause problems. When it does, though, it tends to cause them at the worst possible moment: right before closing, when everyone is packed and the moving trucks are scheduled.

Here is what I go through with every seller client before we proceed.

1. Check for Open Permits and Violations

Before your listing goes live, look up your property on the New York City Department of Buildings Building Information System at a.b1.nyc.gov. Search for open permits (work that was started and permitted but never formally closed out, or work that was completed but never signed off) and for any recorded violations.

Buyers' attorneys and title companies check this routinely. If they find something you did not disclose or resolve, you will be negotiating a price reduction or a closing credit under time pressure. That is the worst position to negotiate from. Resolving open permits before listing puts you in control of the process and the cost.

Common culprits on Staten Island: solar panel installations, inground pools, finished basements being used as living space, decks, and garage conversions. Some were built without permits. Others were permitted but never signed off. Either way, they show up at the worst time.

For a detailed guide on how to handle these issues, see Open Permits and Violations: How They Affect Your Staten Island Home Sale.

2. Review How Your Home Is Titled

Pull out your deed and look at how the property is owned. This matters more than most sellers realize. If you do not have a copy of your deed, one can usually be obtained at the Richmond County Clerk's office or through their website at www.RichmondCountyClerk.com.

Joint tenancy with right of survivorship / Tenants by the entirety (spouses): If one owner has died, the surviving owner typically needs nothing more than proof of the other's death to convey the property. This is straightforward but must be done before contract. Death certificates, if not readily available, can take time to replace.

Tenancy in common: All owners must sign the deed at closing. If a co-owner is unavailable, overseas, incapacitated, or uncooperative, this can become a serious problem.

Life estates: If someone retained the right to live in the house for the remainder of their life, their signature (or proof of their death) is required. If that person is unavailable, overseas, incapacitated, or uncooperative, this can also become a serious problem.

Estate situation: If the owner has died and the property is titled in their name alone, the estate may need to be probated and letters testamentary or letters of administration issued before anyone has the legal authority to sign a contract. This process takes time. Starting it after you find a buyer instead of before costs you weeks.

Divorce: If the property is marital property and you are in the middle of or recently through a divorce, confirm that the division of the property is settled in a signed stipulation of settlement before you list. A buyer should not be caught in the middle of a dispute over proceeds.

To understand the different ways property can be titled and why it matters, read Different Ways to Hold Title to Real Estate in New York.

3. Check for Outstanding Liens and Judgments

A title search will find these eventually. But better to find them before you have a buyer waiting. Common issues include:

• Unpaid contractor liens (mechanic's liens) from renovation work
• Outstanding judgments against any owner
• Unpaid parking tickets
• Unpaid water or sewer charges, which in New York City are a lien on the property
• IRS or state tax liens
• Student loans

None of these necessarily kill a deal. But all of them require resolution before a deed can transfer. And not resolving them in time for closing can result in a large sum of your money being held in escrow (up to three times their face value) until resolved. Knowing about them in advance gives you time to negotiate payoffs or challenge amounts that may be incorrect.

Learn more about common issues that can derail a closing: 7 Common Deal Killers Your Real Estate Attorney Can Help You Avoid.

4. Understand Your Capital Gains Exposure

This is the item most sellers overlook entirely, and it is the one with the highest financial consequence.

Under federal law, a married couple selling their primary residence can exclude up to $500,000 in capital gains from income tax. Single filers can exclude up to $250,000. To qualify, you must have owned and lived in the home as your primary residence for at least two of the last five years.

If you have moved out of your home, whether you relocated for work, moved in with a family member, or transitioned to a care facility, and are now considering selling, check your dates carefully. The difference between selling before and after the two-year threshold is crossed can be significant.

This is a conversation to have with your accountant or tax attorney before you list. Not after you accept an offer or sign a contract.

5. Think Through Your Timing If You Are Also Buying

If you are selling your Staten Island home and purchasing a new home, particularly in New Jersey, the timing of your two closings requires coordination that goes well beyond what a realtor manages. Your sale proceeds need to be available when your purchase closes. Contract deadlines in both states need to align. And if there is a gap between your sale closing and your purchase closing, you may need a formal use and occupancy arrangement that allows you to remain in your Staten Island home for a defined period after the deed transfers.

I am licensed in both New York and New Jersey and handle both sides of these transactions regularly. Getting both closings on the same track from the beginning is far easier than trying to unsnarl a timing problem in the final weeks.

If you're planning to move to New Jersey after selling your Staten Island home, read our complete guide: Selling in Staten Island, Buying in New Jersey: The Complete Roadmap.

6. If You Have Tenants, Deal With It Before You List

If your property has a tenant, you need to think carefully about whether you can even deliver the house vacant at closing, and how long that process might take.

If your tenant has a lease, they cannot be evicted simply because you are selling. The next owner takes the property subject to the tenancy, meaning the tenant has the right to remain through the end of the lease term. Some buyers, particularly investors, may be fine with this. Most owner-occupant buyers will not be.

If your tenant is month-to-month, they still have rights and cannot be removed quickly. Depending on how long they have lived there, they may be entitled to up to 90 days notice before they are required to vacate. And that notice only starts the clock. If they do not leave voluntarily, you are looking at a holdover proceeding, which in this housing court environment can take months. Realistically, you are looking at a six-month minimum time frame from the day you decide to sell to the day the tenant is actually out.

I understand this is an awkward conversation. If your tenant has been paying rent on time and taking care of the place, the idea of serving them with an eviction notice feels wrong. But here is the reality: most buyers are not going to close until the tenant is gone. And if you wait until you have a signed contract to begin the process, you may lose the deal, or find yourself negotiating a significant credit because you cannot deliver vacant possession on time.

If you are selling a tenant-occupied property, have the conversation with your attorney before you list. You need a plan.

The Bottom Line

Your realtor focuses on the market. Your attorney focuses on the title. Run both checklists before you list, not after.

If you would like to review any of the items above before you go to market, I am happy to have that conversation.

For a complete overview of the entire selling process from listing to closing, see The Staten Island Home Selling Process: A Step-by-Step Guide.

Pete Weinman, Esq.

Weinman Law Offices

260 Christopher Lane, Suite 201 | Staten Island, NY 10314

718-442-2010 | Weinman@StatenIslandLaw.com

Licensed in New York and New Jersey