Category: John Dolgetta

The loss of employment can be one of the most stressful events in a person’s life. Purchasing a home, while it is a very exciting time, can also be an extremely stressful event. If one loses his or her job, however, while in contract to purchase a home it can certainly be devastating. A purchaser spends many years to save up enough of a downpayment to purchase a home and, in the end, could potentially forfeit his or her life savings upon the loss of his or her job after a mortgage commitment has been issued by a lender. Recent court decisions highlight the various issues and consequences that could exist when a purchaser loses his or her job, particularly after the lender has issued a mortgage commitment and the mortgage contingency under the contract of sale has been met.
Continue reading “I am Buying a Home and I Lost My Job! Now What?”

The Women’s Council of Realtors Empire Local Westchester hosted a panel discussion on July 9th entitled “Deal Breakers”. It was a privilege to be part of the panel and to listen to the panelists’ invaluable insight into the many issues which need to be carefully understood in connection with a real estate transaction. This article highlights the important issues that exist and how the team of real estate professionals can work together to cause  he successful consummation of a real estate transaction.
Continue reading “The Path to a Successful Real Estate Transaction”

It is with a heavy heart and immense sadness that I author this month’s article in the “Legal Corner”. On June 5, 2018, our world, the real estate industry and the legal profession lost one of its most influential and outstanding members, Edward I. Sumber, Esq. While the column is usually the subject of legal updates and guidance, and the latest trends in the real  estate industry, this month I pay tribute to my predecessor and mentor, a truly great attorney, counsellor, educator, advisor, author, husband, father, grandfather, mentor, friend, and above all, a great person, Edward Sumber, who was simply referred to most commonly as “Ed” or “Board Counsel”. When you mentioned the words “Board Counsel” you immediately thought  of Edward.
Continue reading “Edward I. Sumber, Esq., “Board Counsel” – His Legacy Will Always Live On”

Posting on social media platforms, such as Facebook, Instagram or Twitter, has become commonplace for real estate professionals. Every day agents post new listings, photos, open houses and much more on their social media sites, and may not even realize that they are engaging in advertising. It is important to be aware that any advertisement, in whatever form or medium, is subject to New York State’s Advertising Regulations (“DOS Regulations” or “Regulations”) (see https://on.ny.gov/2rtdBV3).
Continue reading “Websites, Social Media and The DOS Enforcing The Advertising Regulations”

On March 27, 2018, the National Fair Housing Alliance, the Fair Housing Justice Center Inc., Housing Opportunities Project for Excellence, Inc. and the Fair Housing Council of Greater San Antonio (the “Plaintiffs”) filed a lawsuit against Facebook, Inc. (“Facebook”) in the United States District Court, Southern District of New York (see https://bit.ly/2HprYkb), alleging that Facebook’s advertising platform violates the Fair Housing Act (the “FHA”) in that it allows users and advertisers to specifically exclude or block individuals, who are members of legally protected classes under both federal and state law, from receiving advertisements in connection with the sale and rental of real property and dwellings.
Continue reading “Privacy Issues, The Fair Housing Act and a Lawsuit Against Facebook”

Recent decisions from the New York State Appellate Division serve as reminders to brokers, associate brokers and licensed salespersons of the importance of entering into written agreements and the strict fulfillment of fiduciary duties, such as dual agency disclosure, in order to preserve rights to commissions. The failure to do so will likely place commissions at risk and lead to unnecessary litigation and expense. It is not uncommon for the costs incurred in connection with such litigation to exceed the actual amount of the commission, causing a real estate licensee to elect to forego his or her rightfully earned commission.
Continue reading “Broker Commission Disputes: You Win Some, You Lose Some.”

On January 31, 2018, an en banc panel of the Federal Circuit Court of Appeals for the District of Columbia (“En Banc Panel” or “Panel”) issued an important decision in its rehearing of PHH Corp. et al. v. Consumer Financial Protection Bureau (“PHH Corp.”). (See full decision at http://bit.ly/2rXR99r). The previous decision of the D.C. Circuit Court issued on October 11, 2016 was discussed in a November, 2016 Real Estate In-Depth article. (See article at http://bit.ly/2kfPR3u). The En Banc Panel decided two central issues: (1) whether the makeup of the Consumer Financial Protection Bureau (“CFPB”) with a single agency head (i.e., the Director) who can be removed by the President only for cause (i.e., for “inefficiency, neglect of duty, or malfeasance in office”) is constitutional, and (2) whether PHH Corp. and the other entities violated anti-referral and anti-kickback provisions of the Real Estate Settlement Procedures Act of 1974 (“RESPA”) in light of previously issued guidance from the Department of Housing and Urban Development (“HUD”). While both issues are critical, the latter more directly affects the real estate industry and the industry’s use of marketing service agreements (“MSAs”).
Continue reading “The Latest PHH Corp. v CFPB Decision and the New CFPB Culture”

On December 24, 2017, President Trump signed the Tax Cuts and Jobs Act (see http://bit.ly/2jZX47p) into law (hereinafter the “Tax Cuts Act”). While there has been much debate as to what effect the Tax Cuts Act will have on the real estate market in general, one thing that is certain, is that the new law will certainly have a positive impact on the tax implications on the income of many real estate agents. In August, 2017, the potential impact of the restructuring of the tax code and the benefits of setting up a limited liability entity such as an s-corporation (“S-Corp”) or limited liability company (“LLC”) were discussed in the Real Estate In-Depth article entitled “Agents, Associate Brokers Could Benefit from Commission Via ‘Pass-Through’ Biz Entities” (the “August 2017 Article”) (see http://bit.ly/2mDq45j). However, with the passage of the Tax Cuts Act, there have been additional changes to the tax code that will not, at least from a tax perspective, require many real estate agents to rush to form a S-Corp or LLC.
Continue reading “Pass-Thru Entities Revisited In Light of the New Tax Law”

Maureen S. Walck (“Defendant”), a real estate broker with RealtyUSA, a real estate brokerage firm with an office located in Lockport, New York, pleaded guilty and entered into a plea agreement with the U.S. Attorney General to a misdemeanor for failure to provide the lead paint hazard warning notice in accordance with the Residential Lead-Based Paint Hazard Reduction Act of 1992 (the “Lead Paint Act”) (see USA v. Walck, Case No. 1:17-mj-01103-JJM). The charge carries a maximum sentence of one year in prison, a fine of $100,000, or both, a mandatory $25 special assessment and a one-year term of supervised release. Sentencing is scheduled for December 11, 2017.
Continue reading “Lead Paint Disclosure: A Very Real Potential for Criminal Liability and Other Severe Penalties”

Recent lawsuits highlight the risks related to the departure of key employees and agents from brokerage firms. In two recent cases, Douglas Elliman of Westchester, LLC v. Theiss (No. 58059/2015, 2017 WL 3159223 (N.Y. Sup. Ct., Westchester Cty., June 20, 2017)) and Douglas Elliman, LLC v. Steinberg (2017 Slip Op 31047 (N.Y. Sup. Ct., New York Cty., May 16, 2017), several important issues are addressed of which all brokerage firms, as well as managers and licensed salespersons, should be aware. Both cases involved former employees and agents of a brokerage firm being sued for soliciting and/or recruiting other employees and agents to leave the former firms and to join their new firms. Each of these cases also involved allegations that these former agents and employees misappropriated confidential and proprietary information belonging to their prior firms.
Continue reading “Recent Case Law: Concerns Involving the Departure of Key Employees and Agents from a Brokerage Firm”