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Questions Answered by Elaine Shay
1 Answer | Asked in Estate Planning and Probate for New York on
Q: NY State probate question

A will in NY state gives the homestead to one heir and the contents to another. During the probate process, who is legally responsible for paying bills associated with the property?

Elaine Shay
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Elaine Shay
answered on Jan 28, 2023

The expenses of the estate are paid from Estate assets. The expenses associated with the property before it is transferred to the beneficiary are generally the Estate's responsiblity and not those of an individual beneficiary. The language of the Will may provide more guidance.

1 Answer | Asked in Landlord - Tenant and Small Claims for New York on
Q: How do I sue him for 500? I wanted my things I have to come up with 500 just to access to get my things that's not fair

I tryed to resolve this issue within the 30dats he was the one who prolonged this not me my husband and in made numerious attempts he ignored us

Elaine Shay
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Elaine Shay
answered on Jan 26, 2023

If you pay the money but don't feel it was just, you may commence a case in Small Claims Court to recover the money you believe was collected wrongly. However, if you owe money for rent arrears, the landlord may counterclaim against you.

3 Answers | Asked in Landlord - Tenant for New York on
Q: Is it legal for my landlord to use a window (not open) to enter my home while we are away? He lost his key

This is an email the landlord sent while I was away. Is this legal to do for him? The reason is that he have lost his key.

"We did test the boiler for the third time this morning and it started up without hesitation. I left the heat on so it should be warm when you arrive. I did have... Read more »

Elaine Shay
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Elaine Shay
answered on Jan 24, 2023

In NYC landlords are required to obtain the tenant's consent to enter an apartment for a non-emergency reason. The method of entry is not defined.

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1 Answer | Asked in Real Estate Law for New York on
Q: I am holding a mortgage for an 80 yr.old. What is the name of the document we should have in place in case he passes?
Elaine Shay
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Elaine Shay
answered on Jan 20, 2023

If by "holding a mortgage" you mean you are the lender on the note secured by a mortgage against property owned by the 80 year old borrower, provided your mortgage is propertly recorded there should be no additional documents required to secure your loan. Regardless of age, the... Read more »

3 Answers | Asked in Landlord - Tenant for New York on
Q: I paid first month rent and security deposit before i moved in. Can they use my security deposit for 2nd month?

I am having a problem with my bank account due to fraud, I am wondering if management can use the security deposit I gave before I moved in for this month that I owe rent on.

Elaine Shay
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Elaine Shay
answered on Jan 12, 2023

Security deposits are designed to provide the landlord with protection against the cost of damages or unpaid rent at the end of a tenancy. Therefore, landlords are not obligated to apply the security deposit towards rent while a tenant is still in occupancy.

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2 Answers | Asked in Landlord - Tenant for New York on
Q: Landlord had no Certificate of Occupancy, paid last months rent to move in and found asbestos in basement ($14000 est)

Just found out Landlord never got a C of O and we live here! AND found asbestos which I was disturbing doing laundry! Took last months rent from us as well to move in.

Elaine Shay
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Elaine Shay
answered on Jan 12, 2023

Depending on when a building was constructed or modified, a certificate of occupancy may not be required. Testing is usually required to verify the presense of asbestos. If a security deposit was required, the landlord is not permitted to also collect last month's rent.

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3 Answers | Asked in Landlord - Tenant for New York on
Q: As a home owner do I have to pay for broken damaged appliances caused by my tenant?

I am a home owner and when my tenant moved in, all appliances including ceiling fan was in excellent working safe condition. Last summer I had to replace the ceiling fan because he was being too rough with it that the wires got disconnected. Now the oven door frame is broke (looks like it was... Read more »

Elaine Shay
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Elaine Shay
answered on Jan 3, 2023

Tenants are generally responsible for damage caused by misuse of the rented premises/ However, the items you mentioned as needing repair could merely be the result of regular wear and tear for which the tenant is not responsible.

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2 Answers | Asked in Real Estate Law and Landlord - Tenant for New York on
Q: What paperwork do I need to get drawn up?

We want to purchase my brother's house he's willing to sell it to us at what he still owes its him his wife on it and his father inlaw as a co signer. We are building our credit currently and we don't have anyone to co sign for us. My brother said we can make monthly payments for the... Read more »

Elaine Shay
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Elaine Shay
answered on Dec 13, 2022

Unfortunately, real estate transactions between family members that are done informally without an attorney often result in disputes down the road. Therefore, it is important to obtain legal representation to properly document this proposed transaction and best protect yourself instead of asking... Read more »

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3 Answers | Asked in Landlord - Tenant and Small Claims for New York on
Q: How soon can I take my landlord to small claims court to get my security deposit back . It’s been over 30 days .

Also do they have to give back double for not having it back on time?

Elaine Shay
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Elaine Shay
answered on Dec 2, 2022

Under NYS law, landlord's are required to retun a residential security deposit within 14 days of vacatuer and provide written notification of the reasons for any deductions from the security deposit. If it has already been 30 days, you may commence a Small Claims Case or contact the Attorney... Read more »

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3 Answers | Asked in Consumer Law and Landlord - Tenant for New York on
Q: Should I signed a commercial lease that my landlord sent me when I'm a residential tenant?

I lose my job in August and since I didn't have the money to paid the rent I apply for ERAP. I informed my landlady and she is ok with this but they still have not approved my application. Today I received a message from my landlady to please sign a lease she sent me via email. When I look at... Read more »

Elaine Shay
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Elaine Shay
answered on Nov 16, 2022

If you have an ERAP appliction pending, the landlord is stayed from taking any action to evict you until a determination on your application is issued. Commercial tenants are not entitled to file an ERAP application nor are they entitled to the related stay preventing eviction. It sounds like... Read more »

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1 Answer | Asked in Landlord - Tenant for New York on
Q: Paying to stop a marshall's eviction notice

I got served a Marshall's 14 day eviction notice. Short story is it's my own fault I let it get to this state but I definitely want to get this rectified as this has been my home my entire life (rent-stabilized unit since my birth). Can I go down to the landlord-tenant court and bring... Read more »

Elaine Shay
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Elaine Shay
answered on Oct 31, 2022

You may go to the Housing Court in the County that issued the warrant of eviction and make an application for an Order to Show Cause ("OSC") to stay your eviction. You may bring certified funds payable to the Petitioner to demonstrate to the Court you have the funds available to satisfy... Read more »

1 Answer | Asked in Landlord - Tenant for New York on
Q: I want to evict my roommate they aren’t on the lease and never payed rent but have squatters rights

Brooklyn New York

Stabilized rent

Elaine Shay
PREMIUM
Elaine Shay
answered on Oct 17, 2022

Here's a link to guidance from the NYC Civil Court regarding a roommate holdover case: https://nycourts.gov/courts/nyc/housing/holdover_roommate.shtml

However, it is strongly recommended that you retain an attorney to assist you through the process.

1 Answer | Asked in Landlord - Tenant for New York on
Q: Can I evict a squatter not on the lease?

I have a tenant who has been paying the rent. They took in a roommate who is not on the lease and had refused to pay rent as they agreed upon. Can I evict the squatter and get my locks changed?

Elaine Shay
PREMIUM
Elaine Shay
answered on Oct 11, 2022

Tenants are permitted to have roommates but any issue between the tenant and his/her roommate is not a basis for you to evict the roommate. Depending on the circumstances, you could start a case against your tenant as well as the roommate. However, as long as you are being paid the agreed rent by... Read more »

1 Answer | Asked in Real Estate Law for New York on
Q: My father passed away March and he didn't have a will but he owned property

I have the original paperwork for the purchase of the property

Elaine Shay
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Elaine Shay
answered on Oct 9, 2022

If your father had other assets, you will need to file for an Administration in Surrogate's Court. However, if the property is the only asset, title to the property vests in the heirs by operation of law. Your interst in the property is determined based upon the other surviving relatives of... Read more »

1 Answer | Asked in Landlord - Tenant for New York on
Q: does my landlord have the right to keep my security deposit and/or take me to court

July 2021 i signed a one year lease until July 2022. In June of 2022 my landlord emailed me expressing he would not be renewing it and would put me on month to month where i stated that would be no problem. 8/26/2022 he gave me a 60 day notice to move out by 10/31/2022 with no explanation. I asked... Read more »

Elaine Shay
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Elaine Shay
answered on Oct 6, 2022

If your landlord attempts to retain your security deposit, you may sue in Small Claims Court and the Court will determine the issue.

1 Answer | Asked in Landlord - Tenant for New York on
Q: I have not raised the rent for my tenants in 8 years, there is no lease, 2-family house. How much can I raise the rent?
Elaine Shay
PREMIUM
Elaine Shay
answered on Oct 4, 2022

Unless your property is rent regulated or the rent is otherwise restricted by a housing program, there is no limit on the rent increase you can request. However, if you intend to raise the rent by 5% or more above the current rent, you must serve the tenant written notice of your intent to do so.

1 Answer | Asked in Landlord - Tenant for New York on
Q: Can a landlord in lockport ny that is going to sell their rental , issue a 60 day notice to a month to month to renovat
Elaine Shay
PREMIUM
Elaine Shay
answered on Oct 3, 2022

Generally, unless a tenant is protected by the terms of his or her lease or applicable rent regulation program, a landlord is free to terminate a month-to-month tenancy by service of the appropriate Notice of Termination, which is 30-90 days depending upon how long the tenant has been in possession.

2 Answers | Asked in Real Estate Law for New York on
Q: Wondering if I can take legal action against a seller/ contractor/ flipper after I the buyer waived the home inspection

I had made an offer on the house and was told by My realtor that it was between me and one other if I waived the home inspection I would get the house, I asked about the roof and the realtor said that the seller said it looked good when they looked at it so now 8 months later I need a complete... Read more »

Elaine Shay
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Elaine Shay
answered on Oct 3, 2022

Difficult case without the disclosure which generally depends on the exact terms of your contract and whether the seller actively concealed the condition. Worth a conversation with your closing attorney.

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1 Answer | Asked in Landlord - Tenant for New York on
Q: My landlord is refusing to give me my deposit and is instead giving it to my ex-partner who is also on the lease.

The landlord signed a new lease with my ex-partner and is trying to 'roll-over' my deposit to a lease agreement that I am not apart of. I need help getting my lease back as stated in the lease agreement.

[Update] Can you inform me of my options?

Elaine Shay
PREMIUM
Elaine Shay
answered on Sep 30, 2022

You may sue your landlord and ex-partner in Small Claims Court for the refund of your security deposit.

2 Answers | Asked in Real Estate Law and Contracts for New York on
Q: If you sign a real estate contract but tell your lawyer not to send it and they do, is that contract enforceable?

My elderly father signed a contract that had no closing date. His lawyer did not tell him either. He signed the contract then instructed the lawyer to NOT send it to the buyer yet. He did so both verbally and through text. Is there any legal recourse? Is the contract valid if the lawyer went... Read more »

Elaine Shay
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Elaine Shay
answered on Sep 22, 2022

When an attorney acts on a client's behalf, they generally do so as an agent with apparent authority to bind the party for whom they are acting as an agent. However, if the agent (lawyer) acted against your father's directions, your father may have a claim against the lawyer.

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