American Land Title Association (ALTA) Principles of Fair Conduct

Benchmark adopts and adheres to these Principles of Fair Conduct
as set forth by ALTA.

Change in NYS Adverse Possession Law

On July 8, 2008, Governor David Paterson signed a bill revising the Adverse Possession Law in New York State. In addition to revisions in the existing adverse possession law, Section 543 has been added to the RPAPL.

Section 543 reads as follows:

ADVERSE POSSESSION: HOW AFFECTED BY ACTS ACROSS A BOUNDARY LINE.

1. Notwithstanding any other provision of this article, the existence of De Minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.

2. Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner’s property shall be deemed permissive and non-adverse.

This legislation was introduced in response to a recent decision finding in favor of a claim of adverse possession. Walling v. Przybylo (7 NY 3d 228 (2006).

The revisions to the law removes the traditional requirement that property be cultivated or improved; rather it requires that the encroachment on the property be “sufficiently open to put a reasonable diligent owner on notice” or there must be a substantial encroachment. In addition, the existence of “De Minimus non-structural encroachments such as fences, hedges, shrubbery, plantings, sheds and non-structural walls” is now deemed to be permissive and non-adverse. Furthermore, mowing or similar maintenance across a boundary line is also deemed permissive and non-adverse.

Further, the revisions require an adverse possessor to have a “claim of right” or a “reasonable basis for believing” that the property belongs to the possessor.

According to its legislative sponsors, this bill is intended to limit the use of adverse possession to good faith disputes over title to real property.

The law took effect immediately upon signing and will apply to claims filed on or after the effective date of July 8, 2008.

View this in memo form (MS Word)

Town of East Fishkill & Refinances

As of June 1, 2008, the Town of East Fishkill requires a notarized letter from the lender with all requests for searches. Read the full memo here (PDF).

Air Right Lots: Effective 9/1/08

Effective September 1st, 2008, The New York City Office of the City Register will no longer accept partial lots for Air Right documents. Read the full bulletin here.

"Profits and Passions: Christine Gagliardi"

Senior Vice President Christine Gagliardi was recently profiled by the Westchester County Business Journal. Read the full article here.

UCC Filing - Westchester County

We are pleased to advise you that you now have the ability to file UCC's electronically with the Westchester County Clerk. The website is http://ucc.westchesterclerk.com. See the press release from the County Clerk's Office attached. 

We have found this electronic filing system to be simple and it enables you to obtain your filing information within hours of submitting the UCC for filing.  If you would like a demonstration on this system, please let your sales representative know.

The Importance of Performing Core Title Services

An article by Jean Partridge, Benchmark's Chief Counsel and Managing Member, published in the Journal of the New York State Land Title Association, Inc., Winter 2008

The Importance of Performing Core Title Services (PDF)

Increase in Filing Fees for Equalization Form REJECTED

Please be advised that the proposed increase in filing fees for the RP-5217 and RP-5217NYC HAS been REJECTED by the Senate and the Assembly. The New York State Budget Bill (S6809/A9809) as approved does NOT include the proposed increase in the filing fees for these forms.

The filing fees will remain at $ 75.00 for agricultural and 1-3 family residential properties and $165.00 for all other property types.

Rejected RP-5217/RP5217NYC Memo - PDF

Read the proposed RP-5217 Filing Fee Memo here - PDF

New Forms for 2008

IT 2663 for 2008

Instructions for IT 2663 for 2008

Columbia County Transfer Tax

The County of Columbia has imposed a real estate transfer tax of $1.00 for each $500.00 of the consideration, or fractional part thereof, on the transfer of real property or an interest therein in the County of Columbia. Please note that there is an exemption as to the first $150,000.00 of consideration for the sale of a single family residence. The County of Columbia was authorized to create this tax pursuant to Article 31-A-2 of the New York Tax Law (Sections 1439-a through Section 1439-o). This Article shall expire and be deemed repealed on December 31, 2009.

The Law takes effect on December 1, 2007. A conveyance made on or after December 1, 2007, pursuant to a binding contract executed prior to that date is not subject to the Tax, so long as the date of execution of such contract is confirmed by independent evidence such as the recording of the contract, payment of a deposit or “other facts and circumstances as determined by the Treasurer".

The Columbia County Transfer tax is to be paid to the treasurer or the recording officer acting as the agent of the treasurer at the time the deed or instrument of conveyance is submitted for recording. New York Tax Law Sections 1439-a(9) and (10) define “Treasurer" as the commissioner of finance of the county of Columbia, and "Recording officer" as the county clerk of the county of Columbia.

The Columbia County Supplemental Transfer Tax Return is to be submitted with the payment of Columbia County Transfer Tax. There is a $5.00 filing fee for the return.

Please note that the New York Tax Law Section 1439-c(2) provides in part that:

“The return, for purposes of the real estate transfer tax imposed pursuant to this article, shall be a photocopy or carbon copy of the real estate transfer tax return required to be filed pursuant to section fourteen hundred nine of this chapter. However, when an apportionment is required to be made pursuant to section fourteen hundred thirty-nine-m of this article, a supplemental form shall also be required to be filed.”

However, the Columbia County Clerk has confirmed that the Supplemental form must be submitted for all transfers of real property, or interests therein, in the County of Columbia.

The grantor is responsible for the payment of the tax. If the grantor fails to pay the tax or is exempt from paying the tax, the grantee must pay the tax.

The exemptions for the Columbia County Transfer Tax are the same as those for the New York State Transfer Tax. If an exemption is being claimed, the box for the specific exemption should be marked on the TP-584 as well as the box in Schedule B, Part II (b) on the Columbia County Supplemental Transfer Tax Return.

Dutchess County Mortgage Tax Increases to 1.30%

Recently the Dutchess County Legislature enacted and the Dutchess County Executive signed a local law increasing the mortgage tax in Dutchess County by 0.25%.

THE PRIVATE WELL-WATER TESTING LAW - Westchester County

On May 23, 2007, the Westchester County Board of Legislators enacted the Private Well-Water Testing Law (Local Law 7 of 2007), which will take effect on November 19, 2007. This law will apply to the sale or lease of any real property where the potable water supply is a private well with less than five (5) service connections.

Important Highlights:

• A “Private well” is defined as an individual water supply system, a private water supply or private water system as defined in Article VII of the Westchester County Sanitary Code.

Sale of Real Property

• The Seller upon signing of a contract of sale, shall have a water test performed at their cost and provide confirmation to the purchaser within ten (10) days of the execution of the contract that test has been ordered from a certified laboratory.
• The Seller will deliver the water testing report to the purchaser within five (5) days of receipt of the water test.
• The Purchaser and Seller shall certify in writing that they have received and reviewed the water test results.
• There are three options in the event that the test discloses a primary water test failure:

• The Seller may correct the condition; or
• The Seller may cancel the contract of sale; or
• The Seller and Purchaser may agree, in writing, that the Purchaser will correct the condition after closing, in which case the Purchaser must correct the condition within sixty days of closing or as soon as practicable.

Leased Property

• The Lessor is required to test the potable water supply from a private well within twelve (12) months after the effective date of this law, or within twelve (12) months from the date property becomes subject to a lease and at least every five years thereafter. If well fails test, the lessor must immediately provide potable water and within sixty (60) days, or as soon as it practicable, remediate or correct the condition.

Water Testing

• Water test shall be conducted in accordance with parameters set forth in Chapter 707

• Only certified laboratories are authorized to conduct the water tests.
• The laboratory must comply with the requirements of this chapter.
• The Law mandates that certified laboratories submit all required test results directly to the Department of Health as well as to the person(s) who requested the test.
• The results of water test, except for coliform results, shall remain valid for one (1) year from the date of sample.
• Coliform results shall remain valid for six (6) months from date of sample.
• No waiver of testing or reporting requirements are allowed.

This memorandum is provided for information only. The issue of well water testing is not related to title and therefore no title objection will be raised regarding same.

Tirsa Owner’s Extended Policy Protection

Your trust and confidence in Benchmark is of utmost importance to us. That is why we have decided to make the TOEPP (Tirsa Owner’s Extended Policy Protection) our standard issue policy on all residential purchases, effective August 1, 2007.

Read more of our memo in MS Word or PDF.