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Homeownership Issues for Seniors

Authored By: Legal Aid Society of Northeastern New York - Plattsburgh Office LSC Funded

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Legal Life Lines

LEGAL AID SOCIETY OF NORTHEASTERN NEW YORK, INC.


Homeownership Issues for Seniors

Someone came to my door and offered to put new windows on my home. They wouldn't leave until I signed a contract. I don't really want to have this work done by this company. Is there anything I can do?

New York State and Federal Laws provide special protections in the case of door-to-door sales. A buyer may cancel a door-to-door sale until midnight of the third business day after the day on which the buyer signed the agreement for the sale. This means that if you signed a contract on Friday, May 19, you would have until midnight on Wednesday, May 24 to cancel, due to the weekend. If you signed the contract on Monday, you have until midnight on the Thursday to cancel. (Special rules apply in the case of the sale of a personal emergency response service, for example a consumer has a longer period in which to cancel the sale: until midnight of the seventh business day). To cancel a sale, you must give written notice to the seller. If you mail the notice, it is considered to have been given when you put it in the mailbox. New York State Personal Property Law Section 427.
The seller is required to give the buyer notice of this right to cancel. The time limit begins to run when the seller gives proper notice. The seller must also conspicuously disclose the refund policy. New York State Personal Property Law Section 428.
New York provides similar protections in the case of telephone sales, including sales where a person received an invitation in the mail to call for some offer. In the case of telephone sales, the buyer may cancel until midnight of the third business day after the day the buyer receives written notice from the seller notifying the buyer of this right. New York State Personal Property Law Section 442.

I signed a contact to have my driveway re-paved. I paid the contractor but I am very unhappy with the work since some parts of the contract weren't completed and the rest of the work was done poorly. Is there anything I can do?

Yes, you can let the contractor know that you are dissatisfied and ask that he complete the work or reimburse you. You should make this request in writing and keep a copy for yourself. If the contractor refuses to complete the contract to your satisfaction, you may bring a lawsuit against a contractor who has failed to complete his obligations under a contract. Such a lawsuit must be started within six (6) years of the failure to complete the contract. You may be able to bring your lawsuit in small claims court, depending upon what you are seeking in the lawsuit. Small claims court is limited to money damages only, in the amount of $3,000 or less.
Also, you may wish to contact the New York State Attorney General's Consumer Hotline at 1-800-771-7755 to make a complaint.

I want to have my roof fixed. The contractor told me what he would do but won't give me a written contract. Is this a good idea?

No, you should always get a written contract. Otherwise, you will have no record of the specific work you wanted done if the contractor does not complete the work to your satisfaction. It would therefore be difficult to prove that the contractor did not do the work which you agreed to have done if you want to file a complaint or a lawsuit. You should be sure to read your contract completely and be sure that you understand it and it meets your expectations (for example, if it matters what type of material is used, this should be specified; if it matters what date work is started and completed, this should be included). Never sign a contract you do not understand. If you wish, you can ask someone else (such as a lawyer, or family member) to review it with you. Remember: it's okay to ask questions and you should do so if you don't understand something.
Also, remember you should always get a receipt when you pay someone so you will have proof that you completed your obligations under the contract.

One of my neighbor's trees is dropping leaves and branches all over my property. Another tree appears to be dead and is leaning over my fence. Is there anything I can do?

Yes. You may wish to discuss the situation with your neighbors to come to some agreement. Courts have held that homeowners may protect themselves from overhanging tree branches by trimming and clipping those branches over their property as long as this does not destroy or injure the main tree. Under ordinary circumstances, you may not go onto your neighbor's property to do such cutting. If the tree becomes a nuisance due to rotted or diseased condition which makes it decayed or otherwise dangerously unsound, and you can show "definite offensiveness, inconvenience or annoyance" to a normal person in the community, it may be possible to recover damages in a lawsuit.

I have always gotten along well with my neighbors and I don't have a fence on my property line. My new neighbor recently extended her garden a few feet over the property line into my yard. Will this cause a problem for me in the future?

This could cause a problem. If your neighbor uses the property as if it were her own, in an open, notorious, and exclusive way for ten years, she may acquire title to the property by a process called "adverse possession." The neighbor could then use this as a defense if you tried to eject her from the property after the ten years had passed. Even if your neighbor has not lived there for ten years, if the previous owners of her land also used your property in an adverse claim as discussed above, she may be able "tack on" to the time the previous owners used the property to get the needed ten years. If you believe that someone is using your property in this way, you should consult with an attorney to discuss your options.

My tax bill seems to get higher every year. I don't think that my property is worth as much as the assessor thinks it is. Is there anything I can do?

Under New York State Real Property Tax Law, you can file a complaint about your assessment if it is "excessive, unequal, or unlawful." Your complaint should be on a form prescribed by the state board stating how your assessment is excessive, unequal or unlawful or misclassified. You should also state what the reduction in assessed value is that you are seeking. You then file this complaint with the assessor. RPTL Section 524. You may wish to look at the assessments of similar properties to see if they are lower than yours, obtain an appraisal, present information about purchase price, and/or gather information about your unsuccessful attempts to sell the property at the assessed value, as documentation of your claim. Please be aware that there are deadlines to file complaints. You should contact your assessor for the deadline in your area.
You should also be sure that you are receiving all of the tax exemptions to which you are entitled. In addition to the School Tax Relief (STAR) exemption, people who are at least 65 years of age, may be entitled to a property tax exemption. You should contact your assessor for additional information and applications.

I want to sell my house, but I am afraid that the capital gains taxes will be very high. Am I right to be worried?

A certain amount of capital gains from the sale of property can be excluded if you used the property as your principal residence for a period equaling at least two years during the five year period prior to the sale. The amount of gain excluded from gross income is limited to $250,000 (or $500,000 for a husband and wife filing a joint return). This exclusion applies only to sales on or after May 7, 1997. Also, it applies to only one sale every two years. There is no age limit for this exclusion.

I want my children to have my house after I die. Is it better to just give it to them now?

Giving your home to your children can have income tax, property tax, and other financial implications, and may also place you in a vulnerable position, therefore you should consider such decisions and the goals you mean to accomplish carefully. For example, if you are receiving property tax benefits for people who are at least 65 years of age and you transfer your property outright to your children who are less than 65 (or add them to the deed jointly along with yourself), you may lose your senior tax exemption.
Also, when you make a gift of property during your lifetime, your children take it with the same "basis" for capital gains purposes as you had (purchase price), this means that if the property has appreciated, they could incur large capital gains taxes when they sell it. If the child has not resided in the home, she will not be able to take advantage of the capital gains exclusion for principal residences discussed above. If your property transfers at your death (or through a life estate - see below), the basis may move up to the date of death value and thus avoid large capital gains. For larger estates - over $675,000 in New York, you should be aware that there could also be estate tax implications.
Additionally, transfers for less than fair market value can affect your eligibility for Medicaid if you needed nursing home care. If such a transfer is made within three years of your application for nursing home Medicaid (or five years, in the case of a transfer to a trust), you may have a "penalty period" during which you will not be eligible for Medicaid. The length of the penalty period depends on the amount of the transfer.
You should consult with an attorney to discuss the ramifications of transfers in your particular case and discuss options to minimize any negative effects. You may wish to consider a life estate rather than an outright transfer, for example.
Remember, if you are not the owner of your home, it's not your decision as to what happens to it.

What is a life estate?
A life estate allows you to retain control of property during your lifetime and have it pass to someone else at your death. This can be done through a deed or a will. During your lifetime, you are the only person who has the right to be in possession of the property. You can also sell or lease your property. Remember, however, that you cannot transfer what you don't have. Therefore, since your interest in the property ends with your death, the person who bought your life estate would also lose their possession and control of the property at your death. You can join with the people who take the property at your death to sell the entire interest in the property, however, you should be aware that you would only receive the share of the proceeds that is equal to the value of the life estate.
A life estate can have tax advantages. If you retain a life estate, your home is included in your estate at the time of your death so the capital gains will be computed using the fair market value at the date of your death, instead of the value at the time of transfer, as is the case if you make a transfer during your lifetime. A life estate also should not affect your senior citizen's tax exemptions, as an outright transfer to your children could.
A life estate can also be useful in qualifying for Medicaid as it is not counted as an asset for the purpose of determining Medicaid eligibility and the transfer of the interest in the property after your death (the "remainder") has a lower value than an outright transfer, For example, if you are 70 years old and transfer a house valued at $100,000 while retaining a life estate, the value of the remainder is only $39, 478, instead of the full $100,000 it would be if you made an outright transfer. Such a transfer could result in a "penalty period" if you apply for nursing home Medicaid (see above). Since the length of this penalty period depends upon the amount of the transfer, it can be an advantage to have made a smaller transfer, due to a life estate.

I am having trouble keeping up my house an caring for my husband (or wife) who is ill. Are there any programs which can help me?

Yes. Medicare and Medicaid may provide home care services including medical home health services, personal care services (bathing, dressing, etc.), and non-medical services (social work, housekeeping, etc.).

Legal Life Lines is a Community Legal Education project of the Legal Aid Society. This information is not meant to take the place of legal advice. Laws change frequently. Try to consult an attorney before taking legal action.

This Legal Life Line was written by the Senior Legal Services Program which is funded by the Albany County Department for Aging, New York State Office for the Aging, the United States Administration on Aging, and the Legal aid Society of Northeastern New York, Inc.

 

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Last Review and Update: Dec 30, 2016
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