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REAL ESTATE LAW
If Your New Home is a "Lemon"
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Our home was built one year ago. Is the builder still responsible for leaks in our plumbing systems?
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Yes. The New York Housing Merchants Implied Warranty applies to all contracts for the sale of newly-constructed single-family homes, condominiums and cooperatives contained in structures up to five stories.
There are three categories of warranties, as follows:
- For one year, the home must be free from defects due to failure to construct in a skillful manner. The workmanship and materials must meet or exceed the State Uniform Fire Prevention and Building Code or locally accepted building practices.
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For two years, the following systems must be free from defects:
- Plumbing systems: gas supply lines and fittings; water supply, waste and vent pipes and their fittings; septic tanks and their drain fields; water, gas and sewer service piping, and their extensions to the tie-in of a public utility connection, or on-site well and sewage disposal systems.
- Electrical systems: all wiring, electrical boxes, switches, outlets and connections up to the public utility connection.
- Heating, cooling and ventilation systems: all duct work, steam, water and refrigerant lines, registers, convectors, radiation elements and dampers.
- For six years, the following load-bearing portions of the home must be free from defects which make it unsafe, unsanitary or otherwise unlivable: foundation footings and systems, beams, girders, lintels, columns, walls and partitions, floor systems and roof framing systems.
Builders can exclude or modify warranties by providing a "limited warranty".
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How Real Estate is Divided in a Divorce
Marital property" is property acquired during the marriage which is equitably distributed (but not always equally) between the husband and wife in a divorce or separation regardless of which spouse has title.
"Separate property" is property owned prior to the marriage or acquired by one spouse during the marriage as a gift or inheritance. It is not subject to equitable distribution. The courts have ruled that the following is marital property:
- Real estate acquired by the husband during the marriage, although titled in his name alone.
- Real estate given by the husband to the wife during the marriage.
- A home conveyed by the husband to his wife at her request to shield it from his creditors. The wife was holding the real estate for the benefit of both which constituted an implied promise to hold title jointly as tenants by the entirety.
- The increase in the value of a residence which was owned by the husband and placed in joint names two months prior to separation. The wife contributed to improvements during the marriage.
The following has been ruled to be separate property:
- The increase in value of rental property owned by the husband before the marriage which increased due to market forces and inflation. His only contribution was periodic visits to collect late fees and inspect the property.
- A farm purchased with an inheritance by the husband during the marriage.
(CSBLG - Divorce Planning)
Use Your IRA for Real Estate Investments
There are four main differences between purchasing real estate for yourself and for your IRA:
- Title: When purchasing an asset for your IRA, it must be properly titled to your IRA trust company as custodian for the benefit of you. You need a IRA trust company to serve as your real estate IRA custodian because the IRS does not permit you to personally "touch" your self-directed IRA account.
- Funding: When purchasing an investment (or any portion of an investment) for your IRA, funds must come directly from your IRA. The IRA trust company will send the funds directly to the seller or his agent, per your instructions.
- Expenses/Income: Any expenses associated with your IRA investment must originate in your IRA account and any income must be remitted to your IRA account. Rental payments are remitted to the IRA trust company for the benefit of your IRA. You may use funds from your IRA to renovate property.
- Signatures: Documents for your IRA investments must be signed by the IRA trust company.
For further information regarding real estate IRAs, see www.wny-lawyers.com/pamphlets.php
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