Legal Blog

REMINDER: Foreclosure and LLC

Effective September 13, 2019, Section 1409(a) of the New York Tax Law was amended impacting real property transfers and limited liability companies. When either the grantor or grantee of a 1-4 family residential property is a limited liability company, an addendum must be provided listing the names and addresses for natural persons until 100% ownership is comprised of only natural persons.

This could drastically change considerations, for example, in situations where a foreclosing lender acquires property at or after a foreclosure auction, or even for a group of investors considering purchasing a property. Commonly, for a number of reasons in both those instances the purchaser’s preference has been to use a limited liability company in which to hold the property.  This is problematic in the case of a foreclosing lender where there may simply be too many layers and too many individuals to list to achieve 100% ownership of natural persons, or, in a situation such as a credit union, the natural persons may be the actual members and account holders.

This also opens the door to other issues that may arise by disclosing the names and addresses of these natural persons. The law specifically states that “the identification of such names and addresses shall not be deemed an unwarranted invasion of personal privacy pursuant to article six of the public officer’s law” and this information is not readily available to the public to the extent that it is not recorded with the land records, but, instead, just stays on file in Albany. However, given that privacy concerns are at an all-time high, the best practice would be to simply not provide this information when it can be avoided and where an alternative exists.

The key is that this only applies to limited liability companies and not other forms of ownership (e.g., corporations, partnerships, etc.). Therefore, for sales that have not been held, one answer is to simply not purchase in the name of (or assign the bid to) a limited liability company. Unfortunately, if the grantor or grantee is already a limited liability company, then there are (currently) no exceptions to disclosing ownership down to 100% natural persons.

This amendment took effect in September 2019 and may seem to some like old news. However, one (however small) benefit to the current moratorium on foreclosures is that there is time to prepare a strategy for going forward once foreclosures can once again proceed on residential 1-4 family properties in New York. Compliance with the changes to Section 1409(a) of the New York Tax Law should be instituted on a portfolio or company-wide basis rather than waiting to address these changes on a one-off basis at the conclusion of a scheduled foreclosure sale.

 

For more information on foreclosures, LLCs, and the New York State Tax law, don’t hesitate to reach out to Stephen Forte at stephen.forte@offitkurman.com or Michael Conway at Michael.conway@offitkurman.com

ABOUT STEPHEN FORTE

Stephen Forte focuses his practice in the areas of business, financial services and real estate litigation in the federal, state and appellate courts in New York and Connecticut, as well as other jurisdictions, including the New Jersey federal courts.

Stephen’s business litigation practice includes representing clients in actions involving business torts, corporate disputes, employment matters, breach of contract claims, breach of fiduciary duty claims, trade secrets, and trademark infringement.

 

 

 

 

 

 

ABOUT MICHAEL CONWAY

Michael Conway’s practice is primarily focused on litigation on behalf of financial institutions, companies, officers, and directors. While he practices all aspects of special asset recovery litigation for these entities, Michael also defends these clients in traditional civil litigation, as well as in the bankruptcy arena. He also represents clients in all aspects of business reorganization under Chapter 11 of the Bankruptcy Code and regularly works through litigation to protect the intellectual property rights of his clients.

 

 

 

 

 

 

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing full-service law firms in the United States. With 14 offices in seven states, and the District of Columbia, and growing by 50% in two years through expansions in New York City and Charlotte, North Carolina, Offit Kurman is well-positioned to meet the legal needs of dynamic businesses and the individuals who own and operate them. For over 30 years, we’ve represented privately held companies and families of wealth throughout their business life cycles.

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