CBC Interview on Appointment of Special Counsel

(Source: rawpixel.com)

I was interviewed by the Canadian Broadcasting Company in Special Counsel to Investigate Biden’s Handling of Classified Documents. The clip explains that a “special counsel has been named to investigate U.S. President Joe Biden’s handling of two batches of classified documents after more sensitive government materials were found in his personal home.”

Helping Your Kids Qualify for a Mortgage?

Mitchell Joyce https://creativecommons.org/licenses/by-nc/2.0/

Mitchell Joyce https://creativecommons.org/licenses/by-nc/2.0/

The Wall Street Journal quoted me in Helping Your Kids Qualify for a Mortgage? What to Know Before Cosigning on the Dotted Line. It reads, in part,

With rising interest rates and slowing real-estate sales, homeownership remains out of reach for many would-be buyers. According to the National Association of Home Builders, in the second quarter of 2022, housing affordability fell to its lowest point since the 2007-09 recession.

The NAHB/Wells Fargo Housing Opportunity Index found that just 42.8% of new and existing homes sold between the beginning of April and the end of June were affordable to families earning the U.S. median income of $90,000. This is a sharp drop from the 56.9% of homes sold in the first quarter that were affordable to median-income earners.One option to improve affordability, especially for those who lack good credit: Have mom and dad cosign the mortgage. Many parents are willing to do so, according to data prepared for The Wall Street Journal by LendingTree Inc., an online loan marketplace, which reported that 57% of parents would be willing to cosign their child’s mortgage and 7% have done so in the past.

 *.     *.     *

There is a difference between cosigning and guaranteeing. According to David Reiss, a professor at Brooklyn Law School who specializes in real estate, a parent acting as a co-borrower has the same responsibilities under the loan as their child. They are liable for the payments as they come due and can be sued by the lender for nonpayment if the loan becomes delinquent. But a parent acting as a guarantor has a different legal relationship with both the lender and the child. A parent guarantor would be responsible for the loan only if the child first defaults.

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NYSBA Task Force on the Digital Economy (and the Real Economy)

The New York Law Journal ran a story on the NYSBA’s new Task Force on Emerging Digital Finance and Currency. The NYSBA Press Release is here. Joseph Bizub, my co-author, and I are members of the Task Force. We are writing about the impact of fintech on real estate investment. The Press Release reads:

The New York State Bar Association has launched a task force to make recommendations on how New York should regulate virtual currencies and digital assets and advise the association what the new technology can do for its operations.

“The rapid growth of the metaverse/Web3 and the digital economy present a confluence of issues for lawyers,” said President Sherry Levin Wallach. “At the same time, this technology has the power to significantly change the way we do business, bank, and interact both personally and professionally. It’s important that we are in front of the issues and able to engage productively in this quickly evolving space.”

The task force will work to educate NYSBA members and the legal community about the impact of the digital economy and the legal issues that are likely to arise in representation of clients. It will also evaluate legislative and regulatory proposals and explore how the metaverse and Web3 can benefit the legal profession and bar associations.

“We are already seeing the effects of this trillion-dollar industry in many areas of practice including entertainment, business, intellectual property, tax, criminal and environmental law and trusts and estates,” Levin Wallach said. “The Task Force on Emerging Digital Finance and Currency will ensure that the New York State Bar Association has a voice in this innovative and emerging field.”

Jacqueline J. Drohan, partner at Drohan Lee, and Dana V. Syracuse, co-chair of Perkins Coie’s Fintech Industry Group, will co-chair the task force. The vice chair will be Dr. Carlos Mauricio Sakata Mirandola, CMSquare, São Paulo, Brazil. Marc Beckman, founding partner of DMA United, New York, NY, and Nancy Chanin, who oversees business development at DMA United, will be consultants to the task force.

New York State Bar Association President-Elect Richard C. Lewis will be the task force’s liaison to the association’s Executive Committee. Joseph Bizub and Dina Khedr of Brooklyn Law School will be law student members of the task force.

The members of the task force include:

Alyssa Barreiro, head of fiduciary risk, BNY Mellon, Binghamton, NY

Joshua Lee Boehm, partner, Perkins Coie, Phoenix, AZ

Julie T. Houth, staff attorney, Robbins Geller Rudman & Dowd, San Diego, CA

Luca CM Melchionna, managing member, Melchionna, New York, NY

John W. R. Murray, partner, Foley Hoag, New York, NY

Jeffrey D. Neuburger, head of Blockchain group, Proskauer Rose; New York, NY

Rory J. Radding, partner, Mauriel Kapouytian Woods, New York, NY

David J. Reiss, professor of law and research director, Brooklyn Law School Center for Urban Business Entrepreneurship, New York, NY

Jason Schwartz, tax partner and co-head of Digital Assets and Blockchain Practice, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC

Robyn T. Williams, associate, Devlin Law Firm, Cleveland, OH

Can NYS Rename Trump State Park?

 

photo by Jeffrey Putman

Politifact quoted me in Can New York State Rename Donald J. Trump State Park? It reads,

Even after officially decamping for Palm Beach, Fla., former President Donald Trump has continued to stir emotions in his previous home state of New York.

New York Assemblywoman Sandy Galef, a Democrat, said she believes a park currently named for Trump north of New York City should be renamed. Trump donated the land for the park, and it was agreed at the time it would be named after him.

In a Jan. 14 letter to Erik Kulleseid, the Parks, Recreation and Historic Preservation Commissioner in New York, Galef wrote, “It is my understanding that Mr. Trump did not sign the appropriate documents with the state, rendering any claim of breach of contract moot. We can and should rename the park.”

In an interview, Galef added that the park “really hasn’t been fixed up” and that efforts to do so would be hobbled by having Trump’s name on it. Galef said she believes the park should instead be named after former New York Gov. George Pataki, a Republican.

“Around this area, when you have ‘Trump’ on the name of something, it doesn’t go over very well,” Galef said. “My concern is that people aren’t going to want to put money into Trump Park, whether it’s state dollars or any private dollars.”

Galef has support in her quest to rename the park: On Feb. 11, a bill advanced in the Assembly to continue talks on renaming the park.

But the former president may pursue litigation against the state if the Parks Department decides to rename the park, a Trump spokesman said.

“Despite the fact that the state has done a horrible job running and maintaining the park in question, an utter disgrace to such incredible land and a generous donation, the conditions of this gift, formally documented and accepted by the state of New York, could not be clearer: the park must bear Trump’s name,” Trump’s office said in a statement. “This would be breaching its agreement by removing Trump’s name, and Trump will take whatever legal action that may be necessary to fully enforce his rights under this agreement.”

Is Galef right that New York state could change the name without too much difficulty? The answer isn’t clear enough for us to render a Truth-O-Meter verdict. But we decided to take a look at the issue and explain what we found.

How the park came to be

Donald J. Trump State Park sits on the border of Putnam and Westchester counties along the Taconic Parkway. Trump gave the land to New York State in 2006 after the former president failed in building a golf course on it.

The land deed for the property does not include any naming provisions, but the state named the park after Trump based on a letter of agreement between the Parks Department and Trump’s lawyers.

The letter outlined several terms, one of which is the following: “Each of the properties will bear a name which includes Mr. Trump’s name, in acknowledgment of these gifts. The name will be prominently displayed at least at each entrance to each property.”

The letter includes signatures by Trump’s lawyers and by Trump himself, and it was “acknowledged and accepted” by James Sponable, who was then the Parks Department’s director of real property.

The New York State Attorney General’s office referred questions about the park’s possible renaming to the Parks Department. The Parks Department did not respond to multiple requests for comment.

But legal experts say it isn’t clear how ironclad the terms in the letter are.

“The land is called a gift, so this seems to be memorializing the terms of a gift,” David Reiss, a real estate law specialist at Brooklyn Law School, told PolitiFact. “So, one question is, ‘What’s the enforceability of this letter?’ It’s not obvious to me that this would be analyzed as a contractual dispute.”

Reiss said because the letter does not clearly state that it is a binding contract, it is unclear how a court would treat it if the state were to rename the park and Trump legally challenged it.

“The letter says, ‘We have this understanding,’ but it doesn’t say what would happen if the understanding isn’t held to,” Reiss said. “It doesn’t say what would happen if, at some later time, it changed. There is no promise that the naming would be perpetual. So it’s unclear what Trump’s rights would be to enforce this based on the language of this document.”

Ultimately, Reiss said, “the one sure thing is there could be a lot of litigation about these issues, if the parties chose to litigate.”

A possible plan B

As an alternative, Galef said Trump’s name could be removed from a sign on the Taconic Parkway, which is the most common way for motorists to see it. The letter “doesn’t say you have to have a sign on the Taconic Parkway, … That could come down,” Galef said in the interview.

Reiss, the legal expert, agreed with Galef’s interpretation and said that it might be a feasible option.

“The sign on the Taconic is not the entrance of the park, so you could comply with the letter and still take that sign down,” he said. “It might be confusing to people if you say, ‘Unnamed State Park, next right,” but if you stuck to the black letter of this letter, you could say, ‘Right at the entrance of the park is where we’re going to put the sign, but nowhere before.’”

Non-debt Financing for Home Purchases

Professor Shelby Green

I will be presenting on Non-Debt Financing for Home Purchase: Risks and Promises as part of the ABA’s Section of Real Property, Trust and Estate Law “Professors’ Corner.”  It will take place at 12:30 PM (Eastern Time) on June 9th.  The program is free for ABA members and non-members alike, although registration is required.  Professor Shelby D. Green of Pace University’s Elisabeth Haub School of Law will moderate.  The program description reads:

A new class of financing options is emerging, including non-debt or equity investment, either facilitating the initial purchase with no borrowing or enabling access to equity from existing homeownership. The presenter will discuss whether the surface appeal of these financing inventions may camouflage risks that if not disclosed and well-managed could portend disruption in the housing markets.

Update:  The slides for the presentation can be found here.

Law in The Time of COVID: The Ripple Effect in Real Estate

Dean Michael Cahill

In many ways, COVID-19 has changed the way we live for both the immediate future and long-term. Brooklyn Law School Dean Michael Cahill has been sitting down with members of the Brooklyn Law School faculty to discuss the legal ramifications of our response to COVID-19 and what a post-pandemic world may look like.  Here is the link to our discussion of the effect of the pandemic on the real estate market and beyond: https://youtu.be/j9DFBOsU3qw.

Urban Renewal’s Legacy

photo by Ziggymarley01

I was quoted in The Ledger (Florida) in Seeking Progress, City Upended Lives in Eliminating Moorehead Community. It opens,

After selecting Moorehead as the site of a new auditorium, Lakeland officials began efforts 50 years ago to inform residents, assess properties, make offers to owners and assist residents in finding new places to live.

Dividing the predominantly black neighborhood roughly in half, the city planned to acquire all of the eastern section north of Lime Street by 1971 and the remainder in 1972.

The campaign, which displaced 122 families, fit into a decades-long national phenomenon in which cities partially or completely removed minority neighborhoods for projects aimed at fostering urban renewal.

The American Housing Act of 1949, part of President Harry Truman’s “Fair Deal,” established the power of governments to seize private property for projects categorized as urban renewal. It also made federal funds available for such projects.

Though intended to replace substandard housing with better options, the Act spurred a flurry of activity that wound up displacing minorities, said David Reiss, a professor at Brooklyn Law School and academic program director of The Center for Urban Business Entrepreneurship. Cities used the program’s Title I funding to engage in what was sometimes called “Negro removal” or “slum clearance.”

Before the federal program was halted in 1974, some 2,500 urban renewal projects displaced about 1 million people nationwide, Reiss said.

“Two-thirds of those people were African-American, and if you think about African-Americans being 12 percent of the population, they were being displaced at a multiple, maybe at five times the rate of other Americans and particularly white Americans,” Reiss said. “So urban renewal really reshapes the urban fabric across the country.”

Property in minority communities tended to be cheaper to acquire, especially during the peak period of urban renewal, and Reiss said minorities also were less equipped to challenge authorities.

“It was structural racism on one level, where the majority would find it much easier to displace a black community than they would to displace a white community, although displacement wasn’t only in black communities — but as we see it’s overwhelmingly in black communities,” he said. “Because black communities were often poor, that would be another reason — being in a poor community would give you less political power to fight something like this.”