Law Office of Angela Barker, LLC
In This Issue:

Is the deed to your new home recorded?

 

Guardians must act in the best interest of heir wards.

 

Seeking an Annulment?

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Real Estate Article 

You just purchased the home of your dreams....  
Congratulations! You and your family moved into the house two weeks ago and are still unpacking boxes when someone knocks on the door. You open the door and a man is standing there with the police demanding that you get out of his house. He shows you a deed to the house with his name on it. He is claiming that he bought the house yesterday and was unaware that you already owned the home. How did this happen??

One the first questions to ask yourself is "Did you record the deed after purchasing the house?" The purpose of recording the deed is to give notice to the world that the buyer now has an ownership interest in the property. Once recorded the deed becomes a public record. Recording also creates a chronological chain of title so the history of ownership can be researched.

The new deed should be recorded in the appropriate office, usually the land records office in the county where the property is located. This office may be called, among other names, the recorder's office, the land registry office or the register of deeds. The broker or closer may handle recording, but parties to the transaction should make sure that this important step takes place, regardless of who handles it. There is a deed recording fee; additional fees may apply depending on the size of the property, whether it is a commercial or residential property and the type of deed.

Recording Property-Related Documents 

 

 

Mortgages against real property are also recorded in the county clerk's office or office of the city register. Recording a mortgage creates a trail of ownership of the mortgage lien. The mortgage becomes a public record and it can be reviewed by anyone for eternity. Banks require that a mortgage is recorded prior to a real estate transaction such as refinancing. Recording the mortgage lien benefits banks and property owners because it limits fraud and protects the equity of the home. In New York State, a recording tax is charged for mortgages recorded on property located within the state in addition to mortgage recording fees. Property owners should check with the appropriate office in their county to find out the tax rates and fees for recording a mortgage. 

References 
at NYC Finance Website  
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A Family Law, Wills & Trusts and Real Estate Newsletter
July 2012 
Greetings!  

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Thank you for taking the time to visit my website and reading this newsletter.  Life is a series of transitions, and at the Law Office of Angela Barker, LLC, we are committed to helping ease the transition through the various life stages: whether it be a change in the family structure as a result of death, marriage, divorce, or separation. We are there for you as you buy or sell your home, and we assist our clients in planning for their loved ones' golden years and help them pass their assets on to the next generation. People are our business. For the benefit of our clients and the communities we serve, we have developed this newsletter as a legal and consumer resource. Enjoy!

 


Guardianship Article
America is aging. According to the National Institute of Aging, one in six Americans will be sixty-five years old or older by the year 2020. Thanks to advances in public health, especially in the field of infectious diseases and infant mortality, more people in this country are living longer lives. Problems of normal aging are, of course, exacerbated by additional problems, such as loss of vision, dementia, physical problems or disability. Most elderly people turn to help from adult children, relatives, friends and religious organizations when their personal care and property management become too much for them to handle alone.

Sometimes court intervention is necessary to satisfy the personal or financial needs of an individual with physical and mental limitations. Under Article 81 of the Mental Hygiene Law of New York and Chapter 12 of Title 3B of the New Jersey Statutes, a guardian can be appointed to provide for the personal needs or to manage the financial and property affairs of a person. A person who is unable to handle their personal or financial affairs is called an incapacitated person. A guardian who provides for personal needs such as the health care of the incapacitated person is the guardian of the person. A guardian who manages the property or finances of the incapacitated person is the guardian of the property. Any individual over the age of eighteen, a not-for profit organization, a social services official or a public agency may serve as a guardian. The laws of New York and New Jersey deem court-ordered guardianship to be a measure of last resort and the guardianship will not be imposed if there are other adequate resources available for the alleged incapacitated person.

A guardian has several mandatory duties, which include: exercising the utmost care and diligence when acting on behalf of the incapacitated person; exercising only court approved powers; filing an initial report and annual reports to the court regarding their services, and visiting the incapacitated person at least four times a year, or more if specified in a court order. The guardian should consult with an attorney regarding carrying out his/her duties in accordance with the law and the court orders.
Guardianships serve not only the elderly but individuals with special needs as well. In the case, Matter of the Application for Compensation of Perkins, 108117/00, a woman was the guardian of the person and the guardian of the property for her disabled nephew. The court found that the woman took exceptional personal care of her nephew and was entitled to compensation as his personal needs caregiver. However, the court also found that the woman misused trusts funds by giving away money to the nephew's family members while acting as guardian of the property. Although the woman unintentionally misused the trust funds, she was still discharged from her duties as guardian of the property.
The guardian is a fiduciary in the eyes of the law and must exhibit the utmost loyalty and fidelity to the incapacitated person. If the guardian fails to adhere to this high standard and fails to carry out his or her statutory duties, the
guardian can and will be removed from their position by the court.

References
Brookdale Center for Healthy Aging & Longevity of Hunter College, "Guide to Adult Guardianship" Copyright 2005
Mary E. WanderPolo, "Highlights of the New New Jersey Guardianship Statute"
Joel Stashenko, "Judge Reappoints Guardian Entitled to Fresh Start" New York Law Journal, February 2,2012, at 1.

Annulments
There are two legal ways to end a marriage - Divorce and Annulment. Generally, couples elect to dissolve their marriage with a divorce. But for some couples, an annulment is the preferred method for dissolving their marriage. For instance, the Roman Catholic Church does not recognize a divorce or a second marriage while the original spouse is living. Those who wish to remarry and remain Catholics in good standing may seek a religious annulment in which the church rules that a valid marriage never existed in the first place. A civil annulment is a legal declaration that a valid marriage never existed or was void upon inception. An annulment is different from a divorce in that a divorce is a legal declaration that a valid marriage is over. 

Under the New York Domestic Relations Law, certain marriages are considered void at the inception of marriage due to the status of the parties or their ages. These marriages include 1) bigamous marriage; 2) incestuous marriage or 3) marriages with a person under the age of fourteen. Although these types of marriages are void upon inception, judicial proceedings must be commenced to declare the marriage null and void. Marriages involving: 1) force, duress or fraud; 2) persons between ages sixteen and eighteen or 3) persons with physical or mental disabilities are voidable marriages. Voidable marriages are considered valid marriages until an action is commenced for an annulment. Once the court grants the annulment, the marriage is declared a nullity. If the spouses in a voidable marriage continue to live with each other after knowing all the facts that lead to the voidability, the marriage will be deemed a valid marriage and the couple will not meet the legal requirements for an annulment.

Fraud is the most popular basis for an annulment action. In the case Lazar v. Lazar, 2011 NY Slip Op 51749, discussed in John Caher's article "Wife Proves She's Jewish; Husband Loses Annulment", the husband alleged that an annulment is proper because his wife fraudulently misrepresented herself as Jewish during their eleven year marriage and she was actually a Catholic. The judge ruled against the husband and found that based on the wife's dutiful practice of Judaism, the wife genuinely believed she was Jewish and there was no marital fraud.

Lastly, a party seeking an annulment can seek all of the remedies available to a party in an action for divorce, including maintenance, equitable distribution, child and child support.

References
McKinney's Domestic Relations Law §5-7
Domestic Relations Law § 236 [B] [5] [a]; [6] raj; §240 [1]
Disclaimer: Please note that the articles in this newsletter is for general information and does not constitute legal advice. The Law firm of Angela Barker, LLC is not acting as your attorney. We make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites.