MA - HOUSING RESOURCES MAY 8

 

BUYING A HOUSE - WITH MOLD

A true case of Buyer's remorse - in the lower court's decision, it is noted that the buyer also, pursuant to Section 465 of the Property Condition Disclosure Act ("PCDA"), agreed to accept the
$500 credit in lieu of all remedies afforded under PCDA and in lieu of any other remedies.

Rosner v Bankers Std. Ins. Co,. 2019 NY Slip Op 04015, Decided on May 22, 2019. Appellate Division, Second Department:

"On January 24, 2013, the defendants Jay Bernstein and Allison Bernstein (hereinafter together the defendants), as sellers, entered into a contract of sale with the plaintiffs, as buyers, for a house. The contract of sale contained language providing that, unless expressly stated, no covenant, warranty, or representation in the contract survived closing. A rider to the contract stated that the defendants were not aware of any mold or vermin infestation in the house. Prior to the closing, the plaintiffs conducted a home inspection which revealed, among other things, the presence of water staining and evidence of water infiltration on the interior of the house. The home inspection report stated that a mold evaluation was beyond the scope of the inspection and recommended that if the plaintiffs were concerned about potential mold issues, they should call a professional mold abatement company to perform an inspection. The report also stated that the need for some periodic general pest control should be anticipated. The plaintiffs did not undertake a mold inspection. The plaintiffs closed on the house on February 27, 2013.

According to the plaintiffs, almost immediately after she began getting the house ready to move into, the plaintiff Brooke Rosner began to experience, among other symptoms, headaches, lightheadedness, and dizziness when she was inside of the house which only abated after she left the house. On March 25, 2013, the plaintiffs had mold testing done of the house, which revealed extremely elevated levels of mold throughout the house. Further analysis confirmed proliferate mold growth in the house which allegedly rendered the house uninhabitable.

The plaintiffs commenced this action against their insurance company, Bankers Standard Insurance Company (hereinafter BSI), their home inspector, Blake Pre-Purchase [*2]Consultants, Inc. (hereinafter Blake), and the defendants. Against the defendants, the plaintiffs alleged, inter alia, breach of contract on the theory that the Bernsteins certified that the house was "free of damage, mold, infestation and other defects." After motion practice BSI and Blake settled with the plaintiffs. The Bernsteins then moved for summary judgment dismissing the amended complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiffs appeal.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the second cause of action, to recover damages for breach of contract. The plaintiffs allege that the defendants breached the provision in the rider to the contract which stated that the defendants were not aware of any mold or infestation. However, once title to the property closed and the deed was delivered, "any claims the plaintiff[s] might have had arising from the contract of sale were extinguished by the doctrine of merger" since there was no "clear intent evidenced by the parties that [the relevant] provision of the contract of sale [would] survive the delivery of the deed" (Ka Foon Lo v Curis, 29 AD3d 525, 526 [internal quotation marks omitted]). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the relevant portion of the rider survived the closing. Furthermore, "New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment" (Jablonski v Rapalje, 14 AD3d 484, 485; see Rojas v Paine, 101 AD3d 843, 845). While the plaintiffs submitted an affidavit from a mold remediation specialist who concluded that the defendants must have been aware of the alleged mold condition and actively concealed the odor of mold in the home, the affidavit was speculative and conclusory (see Senatore v Epstein, 128 AD3d 794). In addition, the plaintiffs' submission of pest control service slips failed to raise a triable issue of fact as to whether the defendants actively concealed an alleged infestation of mice in the home.

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the third cause of action, to recover damages for negligence. A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the defendants violated a legal duty independent of the contract. Since the defendants' legal duty did not spring from circumstances extraneous to the contract, the negligence cause of action must be dismissed as duplicative of the breach of contract cause of action (see Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678).

Finally, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the fourth cause of action, to recover damages for negligent misrepresentation. "A claim for negligent misrepresentation requires the plaintiff[s] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant[s] to impart correct information to the plaintiff[s]; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148). Here, the defendants demonstrated that there was no special or privity-like relationship between themselves and the plaintiffs in this arm's length transaction (see Lunal Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661, 663). Moreover, the defendants established that the alleged misrepresentations they made were not extraneous or collateral to the contract (see Heffez v L & G Gen. Constr., Inc., 56 AD3d 526). In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, we agree with the determination granting the defendants' motion for summary judgment dismissing the amended complaint insofar as asserted against them."

WHAT CAN HAPPEN WHEN A HOME LACKS A CERTIFICATE OF OCCUPANCY

Town of N. E. v Vitiello, 2018 NY Slip Op 01497, Decided on March 7, 2018, Appellate Division, Second Department:

"The defendants constructed a residence on property they owned in the Town of North East. Following the denial of an application for a certificate of occupancy, the defendants applied to the Town of North East Zoning Board of Appeals (hereinafter the ZBA) for a variance to allow the issuance of a certificate of occupancy for the residence without meeting certain requirements regarding direct access to, or road frontage on, a public street. By decision dated April 28, 2005, the ZBA granted the variance subject to specified conditions. The defendants did not challenge that decision. Thereafter the plaintiff commenced this action to enjoin the defendants from occupying or otherwise using the residence until such time as a certificate of occupancy was issued. The Supreme Court, inter alia, granted judgment in favor of the plaintiff, and the defendants appeal.

Where a town seeks to enforce its building and zoning laws, it is entitled to a permanent injunction upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law (see Town Law §§ 135, 268; Hasson v S.B.J. Assoc., LLC, 117 AD3d 904, 905; Town of Brookhaven v Mascia, 38 AD3d 758, 759). Here, the plaintiff established its entitlement to a permanent injunction, where the evidence at trial demonstrated that the ZBA granted the defendants a variance to allow the issuance of a certificate of occupancy subject to specified conditions, and that the defendants failed to satisfy those conditions. In particular, a certificate of occupancy had not been issued, and the defendants were occupying the residence in [*2]violation of sections of the Town Code of the Town of North East which required the issuance of a certificate of occupancy before any building or structure may be used or occupied (see Town Code of the Town of North East former §§ 38-10, 98-60)."

HOUSING AND HOMELESS PREVENTION IN NASSAU COUNTY

From the Nassau County website:

"Shelter placements and assistance with emergency housing needs are provided at the Department of Social Services (DSS) under the auspices of the Nassau County Office of Housing and Community Development (OHCD).

Eligible individuals and families can, on an emergency, temporary basis be assisted with shelter and other items of need to help them meet their emergency and move as quickly as possible to a stable self-sufficient role in the community.

Housing Programs & Requirements
If a family or individual is threatened with eviction or foreclosure, assistance may be available to save the current housing. These emergency programs are:

• Emergency Assistance to Adults
• Emergency Assistance to Families
• Emergency Safety Net Assistance

These programs were designed to meet one-time non-recurrent emergency situations.

These benefits do have specific eligibility requirements, and each case receives the attention of a worker with specialized knowledge in this area. Applications for eligibility should be made as soon as the potential problem becomes known.

Following approval of eligibility by DSS, OHCD will proceed with providing for emergency housing assistance."


See https://www.nassaucountyny.gov/1921/Housing-Homeless-Prevention

WAITING FOR BUILDING PERMITS ON LONG ISLAND

If it seems like a long wait, according to Trulia, it is a long wait. In a report updated on July 19, entitled "Is Your Town Building Enough Housing?", the average months for building approval in Nassau/Suffolk is 11.4 months, and only three other communities are slower: in Arizona, California and Hawaii.

The report states:

"In sum, the rate at which we are providing housing in the U.S. relative to demand is low compared to historical standards, but this varies quite immensely across the largest 100 markets. Many places in the Southwest and Southeast actually provide a decent number of new housing units when demand rises, but others in the Pacific West and Northeast don’t. While it is tempting to blame the most popular tool of local land use regulation, zoning, we find that it is actually delays in the building permit approval process that affecting the ability of builders to meet demand. This is because zoning can formally be changed, while uncertainty over building approval cannot."

See http://www.trulia.com/blog/trends/elasticity-2016/

n sum, the rate at which we are providing housing in the U.S. relative to demand is low compared to historical standards, but this varies quite immensely across the largest 100 markets. Many places in the Southwest and Southeast actually provide a decent number of new housing units when demand rises, but others in the Pacific West and Northeast don’t. While it is tempting to blame the most popular tool of local land use regulation, zoning, we find that it is actually delays in the building permit approval process that affecting the ability of builders to meet demand. This is because zoning can formally be changed, while uncertainty over building approval cannot. - See more at: http://www.trulia.com/blog/trends/elasticity-2016/#sthash.dW1atzKR.dpuf

Is Your Town Building Enough Housing?