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Real Estate - The Law Firm of Steven H. Salami

Steven H. Salami

Attorney at Law - Serving NY and NJ

Real Estate: Frequently Asked Questions (FAQ)


    Solar panels can be transferred to a new property if it is within the same utility area - most often the lease is assigned to a new homeowner at the time of sale. This is normally done within the attorney review process where the parties will agree the lease will be assigned & the seller will provide the information to the buyer’s lawyer at the outset of the transaction. The seller’s lawyer will contact the lease company and explain to them that the house is being sold and then the lease needs to be transferred – it is a pretty simple process and the same applies to a home security system - these items are normally maintained for a 20 year period. This must be brought up at the outset of the transaction so that it can be addressed in attorney review and then finalized at the closing.


    Inspection issues that identified in the home inspection report typically are to be addressed by a licensed contractor. As the attorney for the buyer, I always make this request. Of course, the seller wants to make the repairs as cheaply as possible but that is the job of the attorney for the buyer to make sure that we insist upon a licensed contractor to make the repairs. If that is agreed-upon between the parties in writing & it is not done by a licensed contractor, the buyer can refuse to close upon those terms. Of course, if the seller does have a handyman do the repairs and the buyer has their own inspector review the repairs prior to closing (and they are satisfied) then that is another avenue that we can follow to resolve such an issue.


    If there is an easement between properties, the seller has to disclose their knowledge of the nature and extent of the easement to all potential buyers. An easement is a right-of-way one party has over the property of another. If somebody has a right-of-way or if the parties share a common driveway (and the same was a recorded easement on title) then that is something that will impact your ability to convey title to a new buyer. If you have a shared driveway, I would recommend you have a survey done to determine how much of the driveway you actually own as opposed to how much of the driveway your neighbor owns. This is a very tricky situation because it may impact your ability to sell the house at a certain point in the future. Your buyer may not be interested in dealing with a neighbor that has a right-of-way over your property. The best remedy is for the parties to enter into an agreement that is recorded so that everyone can understand the rights and remedies that each party has to that common driveway or to that right of way over your property. Often, neighbors cannot agree on this and that is where lawyers become involved to resolve neighborhood disputes. If your neighbor put up a fence and it is on your property you can remove it but if they put up a fence and there is a dispute over the property line you should have a survey performed. If the parties cannot agree on any resolution that is where an attorney needs to be brought in to file suit to have a judge make a determination as to the property line and the rights and remedies of the neighboring landowners.


    In the event that there is any part of a tree that is encroaching on your property from your neighbor’s property (whether it is the branches, the trunk and/or the roots), you have the right to remove those portions of the tree from your property. Your property goes from the land down to the center of the earth and all the way up into the sky, so anything that extends over your property line is yours even if it is the root of the tree or a limb of the tree. What you should always do is have a survey done. I always tell my clients to have a survey done. I have a very good surveyor (Morgan Engineering) that I use and it is worth $600 -$900 (depending on the size of the lot) to have it done so that you know what you own in case you want to install a pool, a shed, a fence or a deck in the future. If there is a property dispute over a tree or driveway, the survey will tell the tale and save the day. It is better to know this at the outset before you get involved in a real estate transaction. I never like to rely upon a seller’s affidavit that says they have made no changes to the property. People lie and disappear so I cannot rely upon that in any regard; if I am buying property, I get a survey, I get an appraisal, etc – I want to know what I am buying and will invest (not spend, invest) the money because it is going to be my property and after the closing is my headache. This will always be my position - do all of your due diligence to the highest degree just so that you are covered in every possible way.

    • Recently, the New Jersey Appellate Division, in the case of Scannavino v. Walsh (Docket No. A-0033-14T1), issued a fourteen page Opinion (Approved for Publication on April 14, 2016), setting forth the law on the liability of property owners whose trees/vegetation encroaches on the neighbor’s property. If you want a copy of the decision, google the case name or I will send it to you if you want a copy.
  5. WHO IS RESPONSIBLE FOR TAKING CARE OF ABANDONED OIL TANKS? Abandoned oil tanks obviously pose a problem in terms of contamination of the soil. The issues that normally arises here is that the tank is underground and abandoned and there is no way to know if the soil is contaminated without taking the tank out of the ground. That could be very costly. It is sometimes covered by homeowners’ insurance but most often it is not. Very often, the buyer will want the seller to take the tank out at their cost so the buyer can test the soil. The parties will sometimes come to an agreement whereby they will split the cost or, if the seller is not really motivated, the deal will die – however, I always tell the seller’s lawyer that the seller is going to have this problem in the future with any buyer so why not work it out with us? I always recommend an oil tank sweep for a property to ascertain the presence of a tank and then if one exists to remove it to test for contamination of the soil.


    I took this from the DEP website:

    “Being that there have been no new laws written in reference to underground oil tanks in years is not an assistance to anybody, in fact this is a gray area that brings up many potential issues. As of today, it is a buyers market . The economy is slowly recovering and insurance agencies are getting smarter about the way they cover things, underground oil tanks being one of them. It used to be acceptable for people to fill their old oil tanks with sand or foam. By doing this they would feel confident that doing so would be the end of any issues with an underground tank, Out of Sight, Out of Mind. Unfortunately, there were a variety of issues with this strategy of decommissioning the tanks and in the long run many leaking tanks were later found that could have been simply prevented with a removal. When the tanks were filled in place, preexisting leaks that were contaminating the soil were never looked for, or never detected, and were left to cause some major contamination issues underground. These issues often lead to necessary site remediation involving the NJDEP.

    Home Buyers and Home Insurance Companies began to hear horror stories about these issues involving new homeowners who were left with the understanding and peace of mind that their new acquired underground oil tank was appropriately dealt with. So nowadays, it is not likely that an insurance company will offer liability for Underground Oil Tank to a new homeowner. If the buyer cannot get proper insurance, it is unlikely they will receive a mortgage on the home. Even though you, the seller, are not required by law to remove the Oil Tank in order to sell your property, you basically have little choice if you want to sell it.”


    In such a circumstance, the contract normally needs to be amended and, of course, the price will change. This causes all kinds of problems in terms of who is responsible for this. I always recommend my realtors to check with the township regarding the status of the property before they show it to a prospective buyer because what the listing says and what the reality is often are 2 different things. You do not want to rely upon the representations of the listing realtor in every regard and you want to make sure that what they are saying is actually the reality of the situation. Very often you might see something that is represented as a 2 family home that really is a 1 family home. It’s not often that you see something that is a 1 family home it is really a 2 family home but that of course has taken place. I have seen all kinds of problems develop from these situations where the buyers have accused the seller’s realtor of fraud and misrepresentation, etc. I have seen situatuions where the price needs to be adjusted based upon the zoning of the home and this becomes very difficult in terms of negotiation. At the end of the day, if the parties are reasonable they can work something out because it is not often that a real estate agent will knowingly misrepresent this kind of thing; often it is an honest mistake or a miscommunication between the homeowner and the realtor. Having said that, as a listing agent you should check with the township before listing the property as single or multi family home. That is the burden they bear and any mistake ultimately is on their shoulders to cure.


    If an attorney has a written Retainer Agreement with a client that allows the attorney to increase their price based upon the work to be performed then yes, of course, the attorney can add fees to the bill as the transaction proceeds. If there is no written agreement between the client and attorney and the attorney has quoted the client a price then the attorney should stick to that price. However, there are certain things that come up in a transaction that are unexpected such as the need for a Use and Occupancy agreement or Hold Harmless agreement to be drafted. The attorney should notify the client that there is a cost for that when that comes up. It is not always known at the outset of the transaction if that will be necessary. I educate my clients at the outset and explain to them that I have a flat fee of $900 and that is what I charge. However, I explain to my clients that if the deal proceeds and “grows legs” and there is a need for additional documents to be drafted such as Post-Closing Occupancy Agreements, Escrow Agreements, Hold Harmless Agreements, etc, additional fees will be charged. It is really a case-by-case basis but the best bet is for an attorney to have a written retainer agreement with the client that spells out what the fee is and if the deal proceeds how much every other aspect of the deal would cost if it goes that way. It is not possible to contemplate every circumstance of course but an attorney should give a client a solid understanding at the outset of their flat fee cost and how much they will charge based upon certain circumstances that may arise during customary real estate transaction.