Selling a House in New York

Selling a house is one of the most significant legal transactions you'll ever participate in. It's important to know your legal rights and understand the process.

Working With a Real Estate Agent

In New York, real estate agents may act as a seller's agent, a buyer's agent, or may represent both parties to real estate sales transaction as a dual agent. Real estate agents must disclose agency relationships to potential clients. Real estate agents have what's called a "fiduciary duty" to the party who they are representing, in this case, the seller. In New York, this means a seller's agent has, without limitation, the following fiduciary duties to the seller:

• Reasonable care
• Undivided loyalty
• Confidentiality
• Full disclosure
• Obedience
• Duty to account

Under state law, a seller must disclose to the buyer the following potential house defects:

• Drainage problems
• Heating and air conditioning problems
• Roof problems
• Termites or other pests
• Cracks or flaws in walls or foundation or other structural problems
• Leaks
• Fires
• Plumbing problems and information about the property's water source
• Sewage problems
• Dampness in the basement or attic
• Whether work was done to code
• Problems concerning the title to the property
• Lead paint (required under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992
• Environmental problems such as asbestos, fuel spills or storage on the property and whether or not radon testing has been done

Purchase Agreements

When you've got a serious buyer, you'll receive a written offer to purchase your home, sometimes called a "purchase agreement," or "residential purchase agreement."

You won't have very long to decide whether or not to take the offer or propose a counteroffer so it's important to be informed ahead of time.

Common counter-proposal items include:

• A higher purchase price
• A higher deposit
• Giving buyer less time to remove contingencies
• Excluding certain items from the sale
• Providing you move in time to vacate the house after the sale is closed
• A clause making it a contingency that your attorney approve the contract
• A "liquidated damages clause" that details how much money the buyer will owe you if the buyer backs out of the deal for reasons other than the contingencies listed in the contract

Legal Title Issues

Your New York real estate lawyer or title company will investigate the legal title of the property you want to sell, and may find title issues you'll need to understand.

In New York, for example, an implied easement may be present where the use of property continues for a certain period of time. An example of an implied easement is if a neighbor has been crossing your property consistently for several years in order to get to their own property and you, as the actual owner of the property, have not challenged that use then the neighbor may have acquired a prescriptive easement to continue to cross the property in the same manner.

Your property may also be subject to a "lien," a charge on the property to satisfy a debt or other obligation.

In New York, liens on a piece of property may include:

• Construction or mechanic's lien
• Tax liens
• Mortgage
• Judgment liens
• Unpaid municipal utilities (water and sewer)
• Lien on divorced couple's property to be paid at time of sale

Closing Costs

A seller, in addition to paying off all mortgages and liens which encumber the property being sold, is responsible for the payment of New York State Real Property Transfer Tax and the broker's commission if the services of a broker have been retained. If the property being sold is located within the City of New York or the County of Nassau, an additional transfer tax is imposed upon the seller.

Specific Performance

In New York, a seller who agrees to sell a particular property must do so unless the buyer fails to meet all the terms of the purchase agreement. This is called "specific performance." If you have second thoughts on a particular sale, you'll want to immediately contact an attorney.