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JOURNALJOURNAL NEW YORK STATE BAR ASSOCIATION Vol N.YN.Y.. REALREAL PRPROPEROPERTYTY LALAWW JOURNALJOURNAL NEW YORK STATE BAR ASSOCIATION Vol. 27, No. 1 Winter 1999 A PUBLICATION OF THE REAL PROPERTY LAW SECTION MESSAGE FROM THE SECTION CHAIR Greetings, and I wish each of he called me into his office and you your heart’s desire for the New began to scrutinize a certain page Year! of my memorandum, then a certain paragraph, then a certain line— I hope that one of your first finally pointing out my mistake of plans for 1999 is to attend the State having used a split infinitive! That Bar Association’s Annual Meeting in left such an impression on me that New York City the last week in I thought I had banned the split January. The Real Property Law infinitive from my drafting, but it Section will have an informative pro- appeared nonetheless and I apolo- gram for you on Thursday, January gize to all (including Mr. Rennert). 28, followed by a reception and lun- cheon. We expect very high atten- Finding the split infinitive and dance at the program due to manda- thinking back to my days as a new tory CLE requirements, and the lun- associate led me to thoughts of cheon will provide a wonderful mentoring. I was extremely fortu- opportunity for attorneys from nate in that I worked with a skilled throughout the state to meet, renew attorney who took the time to guide old acquaintances and “talk shop.” in New York City (the firm subse- me, not only in my writing and my quently merged into Morgan, Lewis research, but in how to deal with I left you last time searching for & Bockius). I had the pleasure of and be responsive to clients. When the grammatical error in my previous working with a wonderful attorney, I moved upstate and joined message. After graduation from law then a senior partner, named McNamee, Lochner, the mentoring school, I joined the firm of Wickes, William J. Rennert. When I drafted continued with attorneys such as Riddell, Bloomer, Jacobi & McGuire my first memorandum of law for him, INSIDE Page Page What Lender’s Counsel Should Know About Loss The STAR Tax Exemption....................................................22 Under a Mortgage Title Policy ..........................................3 (James M. Pedowitz) (Albert E. Yorio) Annual Meeting Program ....................................................25 Non-Judicial Foreclosure of Commercial Mortgages New York State Title Insurance Industry Proposes Pursuant to Article 14 of the Real Property Continuation of Title Insurance Coverage ......................27 Actions and Proceedings Law ..........................................8 (William A. Colavito) (Richard S. Fries) Bergman on Mortgage Foreclosures: Deeds in Lieu of Foreclosure ..............................................12 When a Prior Action is Pending—A Matter of Strategy..28 (William P. Gardella) (Bruce J. Bergman) Spelling Counts When Searching Title ................................16 New York State Bar Association Real Property Section (Arthur G. Jakoby) Condominiums and Cooperatives Committee LaSalle Update . Crucial U.S. Supreme Court Decision Mission Statement ..........................................................30 Will Significantly Affect Real Estate Investments ..........19 (Robert M. Zinman) Thomas Connolly, who taught me know an attorney just starting out in I recall that when I was first numerous practical real property practice, and you can in any way named to the Executive Committee tips, including how to read an lend a hand—whether it is in con- of the Section, the Chair was Flora abstract of title. (I also owe thanks to nection with an area of substantive Schnall. I was a bit intimidated at my my husband, Russell C. Tharp, Jr., law, practice tips, pointers on how to first meeting with all these icons of for that skill as well—there were comport oneself or how to get the real estate legal world, and it many evenings spent around our involved in the organized bar— was inspiring to me that our leader kitchen table with Russ sharing the please do so. You will feel good, the was a woman. At my first Executive finer points of reading an abstract attorney will benefit and the overall Committee meeting in New York City and plotting a description!) In addi- profession will benefit. You should as Chair, this past September, Flora tion to Tom, David Williams from my also know that the State Bar attended and brought me a flower. firm—a past president of the State Association has a formal mentoring Remember, be a mentor, be a Bar Association—was very instru- program, in which I have enrolled. To “rabbi,” be a friend. mental in getting me involved in the date, I have fielded various ques- organization. At that time, it was tions in real estate law from junior I look forward to seeing many of considered the right thing to do, both attorneys throughout the state, and I you at the Annual Meeting on from the firm’s perspective and from recommend the experience. January 28. the attorney’s perspective. If you Lorraine Power Tharp 1999 New York State Bar Association AnnualAnnual MeetingMeeting January 26-30, 1999 New York Marriott Marquis Real Property Section Meeting Thursday, January 28, 1999 N.Y. Real Property Law Journal 2 Vol. 27, No. 1 (Winter, 1999) NYSBA What Lender’s Counsel Should Know About Loss Under a Mortgage Title Policy by Albert E. Yorio* New York, New York Title insurance is not a guaran- A similar result was reached in to extend time for performance. The tee against future risk like other the Appellate Division case of closing was completed on the date types of insurance. It is a policy of Grunberger v. Iseson.5 In specified in the order. indemnification against risks that Grunberger, the policy insured that At the time of the closing, the are identifiable at the time the policy a mortgage was in a third position purchaser executed a note and is issued and the loss and costs that when it was actually fourth. granted a mortgage to the Falmouth may arise as a result of the loss However, the court did not allow National Bank to secure the note. against which you are insured.1 A recovery under the policy because The note and mortgage were well in title insurance policy is a contract of the value of the premises did not excess of the purchase price. The indemnity under which the insurer equal the amount owed on the first excess was to be advanced as a agrees to indemnify its insured for mortgage. construction loan. as much as the policy amount against loss through defects of title, When Does a Loss Become The seller subsequently liens or encumbrances on realty in Actual Under a Loan Policy? appealed the ex parte granting of which the insured has an interest.2 the purchaser’s motion to extend the A series of 1990 cases from the closing date. When the bank learned Risk alone is not the sole deter- federal First Circuit examined when, of the appeal, it notified the title minant of coverage under the policy. for purposes of a mortgagee’s title insurer, Chicago Title. Chicago Coverage is subject to exclusions, policy, a loss becomes actual, and refused to insure any further exceptions, conditions and stipula- thus recoverable. advances on the construction loan. tions that carve out particular risks To get the bank to make future from the duty to indemnify and In Falmouth supra,6 the insured advances, the purchaser arranged defend and limit the insured’s right filed a complaint alleging breach of for Ticor Title (before it was pur- to recovery. It should be noted, how- the insurance policy for Ticor’s fail- chased by Chicago Title) to provide ever, that if the insurance contract is ure to pay a loss. Under the stan- the bank with title insurance. ambiguous, limitations on the insur- dard terms of the policy as set forth er’s liability are normally narrowly in the 1987 ALTA Mortgagee’s Policy The reviewing court concluded construed against the insurer by the Conditions and Stipulations, para- that the trial judge lacked authority courts.3 graph 11(b), which was carried into to unilaterally extend the time for the 1992 ALTA Loan Policy, the performance of the closing and A claim that is otherwise within insurer’s liability had to be definitely remanded the case for recon- the terms of the policy may fail established in order to trigger Ticor’s veyance of the property to the seller. under exclusion 3(c) of the 1992 duty to pay. The bank then made a claim to Ticor ALTA policy, which specifically for payment of all losses. Ticor excludes from coverage “defects, The case involved land in responded that the claim was pre- liens, encumbrances, adverse Mashpee, Massachusetts for which mature and could not be asserted claims or other matters resulting in there was a purchase and sale until such time as the amount of no loss or damage to the insured agreement. A dispute arose actual damages was established. claimant.” For example, in Green v. between the parties to the agree- Evesham Corp., supra,4 the insured ment and the purchaser sued the When Falmouth sued Ticor, the mortgagee had no recovery under seller. They then entered into a con- federal district court dismissed the its policy because there was no sent judgment fixing the date of con- bank’s claim as premature. The First actual loss, since the value of the veyance. Difficulties arose at the Circuit Court of Appeals affirmed the mortgaged property exceeded the closing, and when it became clear district court’s dismissal without value of the insured loan even with that the sale would not be complet- prejudice. In doing so, the First the known defect. ed on the date set by the consent Circuit distinguished between the agreement, the purchaser sought interest of an owner, which is imme- and was granted an ex parte order diately diminished by the presence Vol.
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