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Welcome to the O'Sullivan & Zacchea Law Blog! Check back regularly for practical legal tips on real estate, trust and estates, elder law and other everyday legal matters. 

  • When Can I Bring an Action for a Constructive Trust?


    When we talk about a person’s real estate, we are in many cases talking about that person’s life savings. When we give other people our trust and control over property we generally expect those people to act in good faith. But sometimes people will take advantage of our good faith and unjustly enrich themselves when they should be looking out for our best interest. If a person finds that someone they have entrusted with their property has defrauded them they may seek to have the situation corrected by starting a law suit for a constructive trust.

    What is a Constructive Trust?

    A constructive trust is a legal remedy that a court can impose when one person is being unjustly enriched through the use of property that rightly belongs to someone else. In these cases, a constructive trust may be created to ensure that the terms of a verbal agreement are upheld and enforced. Through the creation of constructive trusts people may be ordered to transfer property back to the rightful owners or they may be prevented from unjustly enriching themselves through the inappropriate use of another's property.

    For example: Sam wants to buy a home but he has poor credit and cannot qualify for a mortgage so Sam asks his friend Dave to purchase the home in his name. Sam will use his money for the down payment and make all the mortgage payments but the house will be in Dave’s name. Dave buys the house using Sam’s money and Sam lives in the house and makes all the mortgage payments and takes care of the home for many years. Then one day Dave tries to sell the house and keep the profits for himself.

    In this case Sam has a claim for a constructive trust. Even though they never had a written agreement the court can impose a constructive trust to ensure that Dave is not unjustly enriched by selling the house and keeping all the money that rightly belongs to Sam.

    A Finding of Unjust Enrichment?

    Unjust enrichment occurs when one person benefits at the expense of another under circumstances that the law deems unfair. For instance, if the sale of the home where to have gone through in the previous example Dave may be viewed to have unfairly benefited from it. Consequently, Sam may be entitled to restitution, including the proceeds from the home's sale. To prove unjust enrichment occurred you have to show that the person wrongly benefited at your expense thus the wrong doer should be forced to compensate you the injured party.

    Should you find yourself in a position where you feel someone else has wrongly profited from your property please feel free to call Kevin O’Sullivan at (718) 713-3499 for a free consultation. You can also contact Mr. O’Sullivan by email at

  • The Basics of a 1031 Exchange

    Many of our clients who regularly invest in real estate often use 1031 exchanges in order to defer their tax liability on investment properties by using the sales proceeds from the sale of one investment property to purchase a new investment property. Section 1031 of the IRS code contains the basic concept that if the investor didn’t personally receive the proceeds from the sale but instead had those proceeeds held by a qualifed exchange facilitator then there isn’t any income to tax.

    1031 exchanges are a common tax code application used by investors who want to upgrade to a larger more expensive investment property without paying taxes while selling their smaller less expensive property. It is also used by investors who wants to sell a property located in one market and buy a property located elsewhere. 


    When completing a 1031 exchange you must adhere to a strict timeline in order to qualify for the tax deferment. Specifically, there are two important time limits you need to keep in mind:

    First you will have 45 days from the sale of your original property to identify potential replacement properties. You can identify as many as three like-kind properties to buy, or as many as you want if the combined value doesn’t exceed 200% of the sale price of your original property. These properties must be identified in a written document and clearly described with the properties’ street addresses or legal descriptions, and this document must be delivered to your exchange facilitator (An exchange facilitator is the 3rd party who holds your sales proceeds per the 1031 code requirements).

    Second you'll have 180 days from the sale of the original property to close on the purchase of your replacement property or properties. This is when the entire exchange process needs to be completed. FYI, these timeframes refer to calendar days, not business days. And if there is more than one property involved in your 1031 exchange, the clock starts when the first property is sold.


    The short answer is FOREVER. As IRS Code 1031 is currently interpreted the taxes can be deferred indefinitely as long as no monetary benefit is ever persoanlly received by the seller(s) from the sale of a property. For example, if you sell property # 1 usings a 1031 exchange, then buy property # 2 and hold it for several years and then sell property # 2 and buy property # 3 again using a 1031 exchange you can continue to avoid paying certain capital gains taxes. So long as you never "cash out" you can defer these taxes forever. As with all tax issue we advise our clients to confer with their accountant on these matters relating to their tax liability.

    For more than 35 years, the legal team at O’Sullivan & Zacchea has represented clients in a wide range of residential and commercial real estate transactions for individuals, investors and companies in New York City and its surrounding counties. We are well versed with what is required to successfully complete a 1031 exchange and the special terms and conditions that must be part of these real estate transactions. If you have any questions about the 1031 exchange process or if you want to retain an attorney to represent you in the purchase or sale of real estate please feel free to call Kevin O'Sullivan at (718) 713-3499 or e-mail him at for a free consultation, Prior to co-founding the firm Mr. O'Sullivan was an attorney with the New York City Department of Buildings.

  • Buying New York City Property From Overseas

    A question we are constantly being asked by our clients who live outside the United States is, can we purchase real estate in New York even though we are not American citizens? The answer is YES! The fact is people from all over the world buy real estate in New York City as a part of their asset diversification strategy.

    In our experience representing overseas purchasers the most common type of real estate they purchase are condominium apartments as they require no approval from the condominium’s board and they allow unlimited subletting of the apartment as opposed to cooperative apartments that routinely have a very stringent application process and may not allow subletting.  Around 25% of the residential buildings in Manhattan are condos, and that number is rapidly growing.

    Why does New York City seem to attract so many investors from overseas? In large part because Manhattan is among the most expensive, most stable and most recognized market in the world. Based on factors including the economic environment, political climate, access to cultural centers and events,  low crime rates and an overall high quality of life the Manhattan Market was rated the TOP REAL ESTATE MARKET IN THE WORLD FOR 2019 by the Knight Frank Wealth Report. Yet dollar for dollar Manhattan residential real estate is cheaper when compared to other global cities like Hong Kong, London and Paris.

    Many of our overseas clients who purchase property in New York will take title to the property in the form of a Limited Liability Company (LLC). On average an LLC is the best legal structure for investors to hold property in. By placing the property in an LLC it will limit your personal liability and help maintain your anonymity. We routinely assist our clients in the creation of new LLCs for this purpose.

    When purchasing property in Manhattan or anywhere else it is important to select a law firm that will work hard to help you achieve your goals. As part of our dutes as your attorney we will review and negotiate the contract of sale to enure that the contract of sale contains the protections you need in a purchase transaction. We will work with the real estate broker, mortgage broker, title insurance company and all other parties to ensure that the closing takes place in a timely fashion. Our main focus will always be to protect you and your interest throughout this process from contract to closing. 

    If you have any questions about the process of buying real estate in New York City or if you want to retain an attorney to represent you in the purchase or sale of real estate please feel free to call Kevin O'Sullivan at (718) 713-3499 or e-mail him at for a free consultation.

  • Considering A Contingency Fee Agreement


    We understand that litigation can be expensive and cost prohibitve. Unfortunatley for many parties that may have a valid claim the traditional law firm model of hourly billing can be too expensive for the party looking to start a lawsuit. At the lawfirm of O'Sullivan & Zacchea PLLC we may work with our clients on a contingency fee basis. This allows our clients to start a lawsuit when they normally might not be able to. It also gives our clients a level of comfort knowing that our firm is working as hard as we can to obtain a positive result. 

    What Type of Cases May Qualify for Contingency Work?

    A contingency-fee can be appropriate in a wide range of business disputes. Here are some examples where a contingency fee agreement may work:

    • A small or medium sized business that alleges a breach of contract or other harm by a larger organization but is lacking in the funds and resources to fight back.
    • When a partnership or company under a tight budget constraint that needs an attorney to help them bring an action in order to try and recover damages they are due.
    • Breach of contract claims..
    • A party that has filed a Mechanic’s Lien but has not yet collected any of the funds they are due. 
    • Someone who has issued a promissory note but has not yet collected the funds due to them under the terms of the note.

    It is not our goal to make money from our clients. We want to make money for our clients. For this reason whenever it is possible we enter into contingency fee agreements with a client. A contingenct fee agreement where our fee is base on how much we obtain for our clients reduces the exposure and downside for our clients and places a premium on achieving an optimal result quickly and efficently but there can be no settlement unless you agree to the terms. It is our policy not to accept a case unless we believe in it and beleive that we can obtain a positive results.

    If you believe that you have a valid claim against anohter party and you want to speak with an attorney, please feel free to call O'Sullivan & Zacchea at (718) 713-3499 for a free consultation with Kevin O'Sullivan. You can also contact Mr. O'Sullivan at

  • New York Enacts Changes to Partition Law

    PARTITION SEP 16th 2019

    The changes made to the partition law are designed to deal with family members who co-own property and one family member wants to sell the property while the other does not. The aim is to ensure that family members who co-own property are not taken advantage of by property speculators who may buy one family member's interest in order to start a partition action and force the other co-owner to sell their interest in the property at a below market value.

    The big three changes to the Partition law  are:

    (1) The court will require that family members who are co-owners of property negotiate in good faith to see if one owner can buy out the other owner.

    (2) If the parties cannot agree on the value of the property the court will seek to have the property appraised.

    (3) If the parties cannot reach a settlement and the court does order a sale by partition then the property will now be sold on the open market with the assistance of a real estate broker rather than at auction. This change was made in order to get the highest value for the property.

    As noted in our previous blog article (Partition: Forcing the Sale of Jointly Owned Property). When two or more parties jointly own property and one party wishes to sell the property while the other does not the party wishing to sell may file a lawsiut seeking a partition of the property. This type of lawsuit has become more popular as property values have increased and more siblings inherit property that they want to sell but that their siblings/co-owenrs do not. While you still have the right to force the sale of jointly owned property, the state legislature wants to make sure that family members have the option to first buy out one another's interest before selling the property to a third party.

    If you own property with another person and have reached an impasse with a co-owner you may need to start a partition action. Please feel free to call Kevin O'Sullivan at (718) 713-3499 for a free consultation. You can also contact Mr. O'Sullivan via e-mail at:   

  • What Happens If I Get Sued But Don’t Have Insurance??

    There is no law requiring you to have homeowner's insurance. If you do not have a valid home owner’s insurance policy then the risk is all on you. A homeowner is personally liable for any injuries sustained on his or her property to the extent that they are found to be the cause of the negligence. This applies whether or not insurance is in effect. Insurance is used to pay for your attorney if you are sued and to pay claims against the homeowner up to the policy limit. Without insurance, the homeowner has to pay out of pocket. The effect of this obligation is potentially devastating. One serious personal injury case could bankrupt a homeowner, rendering liability coverage a necessity.

    Some examples of homeowner liability include: A tree branch falling on someone, the family dog biting a neighbor or guest, a person slipping and falling on a lose step or a torn or uneven carpeting, someone falling due to broken cement in the sidewalk or falling on the sidewalk because of snow or ice, a person being injured or burned in a fire on the homeowner’s property.

    At O’Sullivan & Zacchea we regularly represent property and vehicle owners who are sued for claims that are not covered by their insurance policy. We understand that these claims and being sued can be potentially devastating to our clients so we work with them throughout the entire process in an effort to minimize their financial exposure and ultimately have the claims against them dismissed. 

    If you have been named in a lawsuit and you do not have insurance please feel free to contact Kevin O'Sullivan or Peter Zacchea at (718) 713-3499 to discuss your case. You may also  e-mail the firm at with any questions you may have. 

  • What You Should Know About The Short Sale Process

    As we have had many inquiries about the issues surrounding the process of completing a short sale we thought this article would be a helpful way to respond to those inquiries and provide some facts about the short sale process. Here you'll find some information on short sales and their challenges and the tools we can provide to help you navigate this process.

    What is a Short Sale?

    A short sale is a transaction in which the bank holding the mortgage agrees to accept less than the mortgage amount owed by the current homeowner. The homeowner must apply to the bank and receive approval in order to complete a short sale. Since a short sale generally costs the bank less than completing a foreclosure on a home, it can be a viable way for a bank to minimize its losses. A short sale may also be the best option for a homeowner who is “upside down” or “underwater” on a mortgage because a short sale may not hurt their credit history as much as a foreclosure. As a result, homeowners may qualify for another mortgage sooner once they get back on their feet financially.

    What should I expect if I decide to do a Short Sale?

    The short sales process itself present a number of challenges for home owners and this is where an experienced attorney can help. Many attorneys are new to the short sales process or have never done one, a difficulty which is compounded by the fact that many banks lack a sufficient and experienced staff to process short sales. Most banks will have their own guidelines on how to handle a short sale request and then complete the sale. This makes it very difficult and time-consuming for home owners who are already in a difficult situation.

    If you are thinking about selling your home through a short sale you should choose a law firm that already has experience dealing with banks and real estate agents in a short sale transaction. At the law firm of O’Sullivan & Zacchea we have represented distressed homeowners who have sold their homes through short sales. We work with our clients at every step to ensure the process is as easy and fast as possible. If you are considering selling your home through a short sale please contact the law firm of O’Sullivan & Zacchea at (718) 713-3499 and ask to speak with Kevin O’Sullivan or Peter Zacchea.

  • O'Sullivan & Zacchea Obtains approx $850,000.00 Decision In Breach of Contract Case


    Kevin O'Sullivan a founding partner of the law firm obtained an award of approximately $850,000.00 for Brooklyn based real estate Developer Two Trees Development in a breach of contract action brought against Clear Channel Outdoor Inc. in Kings County Supreme Court.

    The action centered upon two commercial leases entered into by Two Trees and Clear Channel Outdoor which gave Clear Channel Outdoor exclusive use of four rooftop billboards owned by Two Trees which faced the Manhattan Bridge in the DUMBO section of Brooklyn. 

    Shortly after the City of New York began to aggressively enforce its outdoor advertising sign regulations in March of 2010 Clear Channel Outdoor notified Two Trees that they were terminating the leases which were not set to expire until May of 2020. 

    The leases required that before rightfully terminating them Clear Channel Outdoor was required to use "Best Efforts" to have the signs legalized for usage as "outdoor advertising signs".

    The lawsuit was commenced in 2014 and after a lengthy and in-depth discovery process which included numerous depositions and a review of thousands of pages of documentary evidence. Mr. O'Sullivan on behalf of his client was able to obtain a decision prior to trial via a Summary Judgment Motion by arguing that Clear Channel Outdoor did not in fact utilize best efforts before they terminated the leases and were therefore in breach of contract. Two Trees was awarded approximately $850,000.00 in damages resulting from the unauthorized breach of contract by Clear Channel Outdoor who is currently appealing the decision. The case citation is 55 Washington Street L.L.C. and Brooklake Associates L.L.C vs. Clear Channel Outdoor, Inc.,7926/2014.

    Kevin O'Sullivan represents individuals and companies in a variety of commercial litigation matters such as partnership disputes, breach of contract matters, fraud, theft of service, as well as an array of real estate related matters . If you have an issue relating to your business that you feel requires legal representation please feel free to contact  Mr. O'Sullivan at or call (718) 713-3499. 

  • I‘ve Just Been Elected to My Co-op/Condo Board Now What?

    CO-OPS AND CONDOS JUN 27th 2016

    This time of year we attend a great deal of annual shareholder/member meetings for the co-op and condominium associations we represent. These annual meetings serve a dual function, first they allow the current board and the vendors who service the association such as the property management company, attorney and accountant to present their end of the year reports. Second these meetings are used as the venue to hold elections for the association’s board of directors. The board is typically comprised of unit owners. A board member typically serves on the board for a year until the next annual meeting. While it is a thankless but critically important role board members are not compensated for their service on the board. The intent of this article is to explain what the board does and how it carries out its responsibilities.

    What is the Purpose of the Association's Board?

    The board serves as the decision making body for the co-op or condominium association. While the day to day operations of the association are typically left to the property management company, it is the board who must weigh the options and vote on an array of issue that impact the short and long term operation of the association. Board members will decide when and how to implement capital improvements such as switching the building’s heating system from oil to gas, replacing the roof or installing security cameras. These decisions are typically made after the board reviews proposals from contractors competing on the proposed work. The board also regularly reviews the association’s financial status and decides if it is necessary to increase the common charges/maintenance or obtain financing.

    In addition the board decides when to commence litigation against a party such as a delinquent owner who has fallen behind in the payment of their common charges/maintenance or against a person who is creating a nuisance for other residents.

    Where Does the Board Get its Authority?

    The powers granted to the board are found in the association’s by-laws. These by-laws are found in the offering plan of the association and are available to all shareholders/owners.  The by-laws will list the requirements needed for the board to function such as the maximum number of people who can sit on the board, the titles and responsibilities of the officers on the board e.g. President, Vice President, Secretary and Treasurer and the requirements needed for a board to pass a resolution. Standard by-laws will state that if a quorum is present at any duly called for board meeting the vote of a majority of the member’s present is necessary for a resolution to be passed.

    For example if a board has nine members they will need at least five present to obtain a quorum. If five board members are present and three of the five vote to repaint the building’s hallways then the resolution to repaint the hallways will pass. This is why attendance at every board meeting is critical.

    Cooperative Housing Associations and Condominium Associations operate under two distinct areas of the law. Cooperative apartment ownership is not considered real property ownership but rather as ownership of shares in a corporation. Therefore Co-ops are treated like a for profit business in New York State and operate under the New York State Business Corporation Law commonly referred to as the BCL. Condominium units are considered real property and operate under the New York State Real Property Law Section 9-b Condominium Act.  As your general counsel we ensure that your association is operating within the confines of all applicable laws, rules and regulations.

    What Services Do You Offer As Our Association's Attorney?

    When serving as general counsel to a cooperative or condominium association it is our responsibility to attend to all of the association’s legal needs and concerns. This may include; Reviewing contracts which the association is considering such as a contract to hire a new property management company or landscaper; Advising the board on the need to commence a lawsuit for the collection of unpaid association fees; Appearing in court on the association’s behalf; Representing the association when ECB/HPD or other municipal violations have been issued; Reviewing all documentation related to the association’s refinance of the property and attending the closing; acting as the transfer agent for the association when units are sold; Advising the board on the need to amend the by-laws, proprietary lease or house rules to address the association’s needs; Updating the board on changes in the law which will affect the operation of the association; Attending the association’s annual meeting to present our annual review and replying in a timely fashion to all inquiries from the board or management company.

    As counsel to cooperative and condominium associations located in Manhattan, Queens, Brooklyn, Long Island and Westchester with a combined 800 dwelling units we are well aware of the legal needs of housing associations located in New York. Should you have any questions or if your association is looking to obtain legal counsel please feel free to contact Kevin O’Sullivan at (718) 713-3499. He is also available by email at: 

    We look forward to speaking to you!



  • Your Great-Aunt's Fortune or A Kinship Proceeding in New York


    Your Great-Aunt's Fortune or A Kinship Proceeding in New York

    When someone dies (a "decedent") without a will ("intestate"), their property must be distributed. In New York, the folks entitled to a share in the decedent's property (the "distributees") are defined by statute and separated into classes. Commonly, we identify these folks as the decedent's relatives--parents, children, spouses, siblings, cousins and so on, throughout the family tree.

    At first blush, such a question may seem elementary; after all, who wouldn't know their "relatives"? However, in a time of blended and non-traditional families, multiple marriages, adoptions and foreign divorces, questions about who qualifies as a "relative" have become increasingly complex. 

    In order to resolve disputes about inheritances and answer questions about relationships, New York law provides a mechanism called a "kinship proceeding" whereby a relative proves its lineage to the decedent. The Court requires specific information regarding the decedent's family. Often, the proof of lineage includes documentary evidence, but may require specific evidence, such as a DNA test. Sometimes, it is necessary to include expert testimony from a genealogist. Now so, more than ever, the presentation of documentary evidence is a challenge, especially when the validity of documents is questionable-as is the case when evidence is required to be obtained from foreign countries.

    The burden of proof in a kinship proceeding rests on the person who is claiming a right to receive estate assets. Rules of evidence in kinship proceedings are also very technical. For example, a claimant may take advantage of a legal presumption that a person who would be more than 100 years old on the date the decedent died is presumed to have pre-deceased the decedent. Also, a presumption of death may be applicable if a possible distributee cannot be located after three (3) years following the decedent's death and the Court is satisfied that a thorough search has been conducted.

    The Court will consider all the evidence presented during the kinship proceeding before making a ruling and establishing a heir's right to inherit the decedent's property. After all debts and claims have been paid, the administrator can then transfer the assets and close the estate. 

    Ultimately, if you have a question where you are entitled to inherit from an estate, it is wise to consult with an attorney experienced with kinship proceedings, especially since there are no out of pocket expenses for you. Please feel free to call Peter Zacchea for a free consultation on this matter.

  • Applying for a Variance with the NYC Board of Standards and Appeals


    Applying for a Variance with the NYC Board of Standards and Appeals

    The New York City Zoning Resolution dictates what you can and cannot build on your property. These zoning laws will determine how tall a building can be as well as how far a structure must be from the property lines. The idea behind the zoning resolution is to ensure that the public’s welfare and the character of a neighborhood are protected with each new structure erected.

    If you are planning to build a new structure or do major renovates on your existing building you should first consult with a professional to be sure your plans conform to the current zoning rules. If you find that the zoning laws forbid your plans it doesn't necessarily mean the end of your project, you can apply for a zoning variance with the New York City Board of Standards and Appeals. The variance will act as an exception to the law and allow you to develop your property in a way that is in contravention of the current zoning laws in place.

    Many owners of irregular shaped lots in New York City avail themselves of a variance in order to maximize the returns they can receive from their property. Additionally developers who are looking to build more units on a lot then what is permitted will apply for a variance. The first step in obtaining a variance is to submit your original plans to the Department of Buildings. After your plans are denied by the Dept. of Buildings your next step will be to file your variance application with the Board of Standards and Appeals.

    The Board consist of 5 Commissioners whose job it is to interpret the City’s Zoning Resolution. Specifically the Board will review your plans in conjunction with Zoning Resolution section 72-21. Section 72-21 states in part that: “Where it is alleged that there are practical difficulties or unnecessary hardship, the Board may grant a variance in the application of the provisions of this Resolution in the specific case, provided that as a condition to the grant of any such variance, the Board shall make each and every one of the following findings.

    Section 72-21 then goes on to list the five part test a variance application must pass in order to win approval from the Board. The chief factors the Board must weigh when deciding your application are:

    1-The unique layout/condition of your property.

    2-Because of the unique condition of your property if you were to follow current zoning rules would you receive substantially less of a return on your investment then if your variance application were granted.

    3-If your variance application is granted will it alter the unique characteristics of your neighborhood.

    4-That the hardship suffered by the property owner applying for the variance was not created by the property owner themselves so that they would be entitled to a variance.

    5-That the changes sought in the variance application submitted are of the most minimum nature possible while still giving the owner the relief they seek.

    After the Board reviews your variance application they will conduct a public hearing at which you will be able to state your case. In addition the neighbors of the property in question and the Community Board where your property is located will have an opportunity to tell the board if they approve or disapprove of your proposed plans.

    If you are purchasing an irregularly shape parcel of property or putting up a building that does not conform to current zoning laws or if your plans have already been denied by the Department of Buildings you still have the opportunity to bring your project to the Board of Stands and Appeals to obtain a variance. Please contact the firm and ask to speak to Kevin M. O’Sullivan regarding any questions that you may have. You may also reach him via email at

  • Partition: Forcing the Sale of Jointly Owned Property

    Partition: Forcing the Sale of Jointly Owned Property

    If you own a piece of property with someone in New York and have come to find this co-ownership situation unbearable or undesirable, you can force the other party to sell the property even if they do not wish to do so. Under the law, this remedy is commonly referred to as a partition action ("partition"). 

    While many individuals are unaware or unfamiliar with this process, it is a viable option for those who can no longer tolerate or afford co-owning property with another person. Typically, the courts will not require you to give a reason as to why the property much be sold. All a party bring a partition action must prove is that they are a legal co-owner of the property at the time the action is started. 

    Usually, you may have come to co-own property as a result of a business venture or if you and a relative took title to a home as a result of inheritance. As such, there are two different types of relief you can seek in a partition action.

    The First-- Partition in Kind

    A partition in kind physically divides the property so that each party has their own parcel of land and an undivided interest in that parcel. A simple example of this distribution would be if 100 acres were owned by two business partners. After a partition action, the land is divided into two and each party owns 50 acres. 

    The Second--Partition by Sale

    Partition in kind is best suited for unimproved land, such as fields or open spaces. However, when land is "improved", where a house or building has been developed, it becomes more difficult to achieve an equal distribution of the property. In these situations, the home or building may have to be sold to complete the partition action. The home or building is sold at auction and the co-owners divide the proceeds between them after the sale is finalized. This is the most common type of partition action in New York City. 

    Should you find yourself in a position where a co-owner does not feel the same way you do about the sale of a home or building, please feel free to call O'Sullivan & Zacchea at (718) 713-3499 for a free consultation with Kevin O'Sullivan. You can also contact us by email at 

  • The Air Isn't Free; Buying and Selling Air Rights in New York


    Buying and Selling Air Rights in New York 

    "Buy land, they're not making it anymore"- Mark Twain

    Ironically or not, this quote from Mark Twain captures the intangible and unique value that comes from owning a piece of real estate. The sweep of your ownership may not end at the roof of your building. In many jurisdictions, including New York City and the surrounding municipalities, each parcel of property contains a certain amount of development rights commonly referred to as "air rights". As the price of real estate continues to rise, the sale of air rights has become a niche industry, allowing property owners to turn a profit by selling off development rights they had no intention of using on their own property.

    To understand how the transfer of air rights works, we first need to understand what air rights are. The New York City Zoning Resolution allots a certain amount of buildable square feet on each property lot in the city. The amount of buildable space is called the Floor Area Ration (FAR) and is determined in part by the size of the lot and its location. Many homes and buildings in the city are completed without using all of the FAR allotted to the property lot thus there are millions of square feet of unused/undeveloped air rights available for purchase. 

    For the most part, a person can only sell or transfer their air rights to a lot in which it shares a border with. Owners of landmarked property can offer their air rights to a larger pool of buyers. Even with these limitations in place, air rights are still a hot commodity. In some cases, air rights have sold for as much as 85% of the price of actual real estate in the area. As developers have continued to put up new apartments and cooperative units to address the city's housing shortage, the demand for air rights has surged. Because of zoning restrictions, most developers must first assess how much unused air rights remain in order to determine if they can complete their project to the height and size as they desire. This is especially true in older residential neighborhoods in the outer-boroughs which have seen an increase in multi-unit buildings in traditional one or two family building neighborhoods.

    The sale of air rights is normally done through a Zoning Lot Development Agreement (ZLDA). This transaction differs greatly from the sale of traditional real estate and its implications for your property will be permanent.  If you have been approached by a neighbor or developer about selling your air rights or if you are considering buying air rights to enlarge your building, we strongly encourage you to contact our firm and allow us to guide you through this process to ensure that your ZLDA is completed correctly.

    Please feel free to contact our office at (718) 713-3499 to discuss your matter in depth. 

  • The Delicate Process of Disinheritance


    The Delicate Process of Disinheritance-The In Terrorem Clause 

    With Thanksgiving upon us and the rest of the holiday reasons shortly to follow, we recall Tolstoy's words: "Happy families are all alike; every unhappy family is un happy in its own way." It is in this spirit that we turn our attention to a common issue in estate planning -disinheritance.

    Disinheritance refers to the exclusion of an individual as a beneficiary of an estate. From a practical position, the decision to disinherit someone should not be lightly taken, as it may ultimately lead to undue cost and expense through litigation of the will. Nevertheless, such undertaking are often warranted by the circumstances of the family dynamic. In that vein, disinheritance can be achieved through a variety of strategies, which we will happily discuss in later blogs. Today we will focus on one particular strategy: the interrorem clause. 

    An in-terrorem clause, sometimes referred to as a no-contest clause, in a New York will, simply (and usually sharply) states that a person who challenges the Will is precludes from inheriting under the Will. Although it is true, that many states will not enforce such as clauses, since they are seen as violating public policy and New York court views such provisions suspiciously, they are enforceable under EPTL 3-3.5.

    Please feel free to contact Peter Zacchea to discuss estate planning. He is also available by email: We look forward to speaking to you! 

  • Landlords and Tenants: Can My Landlord Just Change My Locks?


    Landlord and Tenants: Eviction 

    It is every tenant's worst nightmare-to come home and find that the landlord has moved all of your belongings onto the street and changed the locks to your apartment while you were out. Relax! Fortunately, New York State law expressly forbids this type of "self-help." However, if you are having problems with your landlord, it is better to be proactive and talk to an attorney before things escalate. If you are behind on your rent or your lease has expired, you are in jeopardy of being sued for eviction. If the landlord is seeking back rent and you fail to pay or reach a settlement, you may also be liable for a money judgment-which will garner interest and destroy your credit.

    We find that the best course of action is to face the difficult head on! Do not ignore any notice left on your door or in your mailbox (you already know what it is about--and it's not good news!) Unlike those letters from Ed McMahon that find their way from the mailbox directly into the trash, the notice to vacate or terminate are incredibly important. These letters are the first step in your landlord's quest to evict you. Ignoring them only increases the chances that you will lose your apartment.

    If you receive a legal notice to vacate for any reason, your first call should be to our law firm. Depending on the type of eviction lawsuit which your landlord has brought against you and based upon the facts of your case, you may have a variety of legal defenses. The law places the burden on the landlord to not only serve these notices in a specific format but within a specific period of time. If you have a rent controlled or rent stabilized apartment, the landlord has a even larger burden to meet before they can obtain a judgment of eviction.

    If you have ignored all of these notices and find yourself being served with a Summons and Complaint for an eviction, you must act quickly. You are being told to appear in court as a defendant to an eviction action. Your failure to appear may result in a judgment against you. Accordingly, if you have ignored all notices and now find a judgment, warrant of eviction or marshal's notice on your door, you may still have a chance to fight in court but you must act fast

    Ultimately, no attorney can guarantee that you will be allowed to stay in your apartment but we can assure that we will leave no stone unturned and no defense tactic left unused in protecting your rights as a tenant. If you find yourself in a potential eviction situation or have been visited by the marshal with an eviction notice, please do not hesitate to contact us. We're here to help!

  • The First Step in Closing Your Co-op Transaction: Scheduling

    REAL ESTATE LAW SEP 9th 2014

    The First Step in Closing Your Co-op Transaction: Scheduling

    In an earlier blog, we mentioned that common refrain: "It's just a simple co-op purchase." Phrased another, perhaps more accurate way, it's "the secured acquisition of the shares of a cooperative corporation and the concurrent assumptions of a proprietary lease". On second thought, that sounds too sophisticated and too expensive. We'd rather go back to living in our parents' place! Relax! An experienced, knowledgeable attorney will be able to translate the second sentence into the first sentence and bring you from contract to closing in an efficient, mostly painless, manner.

    In this entry, we're going to start where all stories start: at the end. We're going to focus on the closing schedule and explain the basis of the symptomatic frustration commonly associated with the process.

    Regardless of the value of the transaction, cooperative transactions can require more attorney time than other residential transactions simply because of the large number of parties involves. First time purchasers are often surprised to learn that the (1) Board of Directors of the cooperative, (2) the managing agent, (3) cooperative attorney, (4) lender's counsel and (5) seller's bank (commonly calls the "payoff bank") all have significant roles in the acquisition. Keep in mind that these are parties in addition to (6) the seller, (7) the real estate broker, (8) mortgage broker and (9) seller's attorney! When considering the roster of parties involved (and realizing that there are as many as NINE parties essential to the deal), it's understandable that the process can be frustrating. Coordinating nine of anything is challenging- let alone the busy schedules of professionals.

    Before we delve into the specific individual requirements of each party (we'll do that in future blogs), let's start with a general understanding that each of the parties has their own interests to protect. In broad terms, the cooperative's Board of Directors is responsible to its shareholders. A such, they want to make sure that the buyer meets their specifications as a financially and personally upstanding member. The Managing Agent is hired by the Board of Directors. Their job is to insure compliance with the Board's internal processes (and make sure they remain hired by the Board of Directors), for that they coordinate with the Coop attorney (who is also hired by the Board of Directors). The coop attorney actually attends the closing, prepares and oversees execution of the legal instruments relating to your interest in the cooperative corporation.

    For most people, the purchase will be financed by a bank through a mortgage broker. The bank will also retain counsel to prepare and facilitate execution of the security instruments signed at closing in exchange for the loan. Similarly, the seller (who obtained a loan to purchase the unit that the buyer is purchasing) will also have a bank present-the payoff bank, who will be responsible for insuring that the old loan is paid off.

    In just that brief outlines of the various interests and roles played in a "simple" coop purchase, it's easy to see how the scheduling process can become a time-consuming morass. In order to alleviate the frustration cause by the scheduling process, we regularly review the closing requirements with each party in advance and maintain constant communication with each party in order to coordinate clearance in an orderly manner. By facilitating communication and coordinating approval, we reduce the risk of a "surprise" requirement (which will delay closing).

    Please feel free to contact us by phone or email ( if you would like us to represent you in the sale or purchase of a cooperative unit or any other real estate transaction. We're here to help.

  • First Time Home Buyers- Do I Really Need A Lawyer?

    First Time Home Buyers- Do I Really Need A Lawyer? 

    Congratulations! Your offer was accepted. You're just days (actually, months) away from owning your first home. Your first yard. Your first boiler. Your first real estate taxes. Wait, we're getting ahead of ourselves. Congratulations! Your offer was accepted. What no? Our suggestions: call a lawyer. Better yet, call a lawyer with real estate experience, like us. 

    We often hear a common refrain from first-time home buyer clients: "I have a simple matters; it's just a house purchase." Perhaps that's true, but the question remains- do you have the knowledge to examine a title policy, the experience to negotiate and interpret a contract of sale or the time to represent yourself? Assuming the answer is "no," another questions remains- do I need a lawyer? Well, in our view, if you have any questions, qualms or concerns about the transaction, then the answer is "yes". 

    In our experience, both as professionals and real estate owners, proper attorney representation is essential during the three phases of the transaction (the initial contracting process, the due diligence and the closing) to adequately protect your position, identity problems and present solutions. Each of these phases have unique characteristics and challenges (don't worry, we're going to tackle them in upcoming blogs) which can jeopardize or terminate a deal. An experienced, diligent attorney can quickly identify an issue and efficiently resolve the problem before it de-rails a deal. It's important that you work with someone who will take the time to explain the particulars of each challenge as they arise. 

    Too often, we take on clients who have a commenced a transaction with previous counsel. In all of those cases, the common theme is communication. We find the adage--a stick in time, saves nine--to be true. Many of the problems that we are called upon to resolve, could have been resolved in a more cost-efficient manner had counsel taken the time to identify the problem from the outset of the deal and coordinated communication with the parties to the deal. 

    For most people, a home is their most valuable asset, and represents their greatest debt. When the stakes are that high, it just makes sense to enlist a professional that you can trust to assist you in securing and protecting that asset. Please feel free to call us or email us if you would like us to represent you in any real estate transaction. 

  • Advanced Directives: A Cautionary Tale


    Advanced Directives: A Cautionary Tale

    Estate planning documents, also commonly referred to as Advanced Directives, are vital to the safety and protection of your assets and personal well-being. As such, those instruments, especially Last Wills & Testaments, Health Care Proxies and Powers of Attorney, should be updated regularly, as families and personal situations change. We typically recommend revisions to your Advanced Directives after significant life events; such as marriage or divorce, the birth or adoption of children or grandchildren, the unfortunate death of a loved one of if your investments have grown or changed.

    The dangers of inadequate planning were highlighted in a practical way for us when we were recently approached by a client whose mother has suffered a stroke. The client's mother was left physically and mentally debilitated. She was unable to write checks and pay bills from her account. The client had contact the bank and explained her unfortunate situation. The bank, though sympathetic, advised that they were powerless to authorize her to access her mother's account without a duly executed Power of Attorney. However, due to her mother's physical and mental condition, she no longer possessed the required legal capacity to enter such documents. As a result, the mother, stricken with a variety of ailments, was without the ability to provide for her needs or appoint someone to assist her at a time when she needed it most. The client's only option was to seek guardianship, a drastic and costly endeavor, in order to properly address her mother's needs. 

    Unfortunately, the foregoing case is not an isolated one. Such instances occur more frequently than is commonly thought. However, the reality is that such unhappy scenarios can be easily avoided with modest foresight and resources. A properly prepared estate plan protects you at all stages of life and provides security for you and your family in uncertain times. 

  • Welcome to O'Sullivan & Zacchea

    INTRODUCTION JUN 28th 2014

    Welcome to our Blog!

    It's our goal to use this forum to educate, share insight and (dare I say?) entertain you, with our thoughts, ideas and interactions with the legal experiences common to us all. We'll use this space to share our stories and theories in a casual, relatable way that makes our practice more accessible.

    But first, a little about us, your blog purveyors. We're young, energetic professionals who have been together since 2009 (who says a recession isn't a great time to start a business?). Although we're all from different backgrounds, we share an important trait-passion. We love what we do and we try to bring that sentiment to our firm everyday (naturally, some days it's easier to do than others!)

    Since we opened our doors, we've successfully represented and continue to represent a broad array of clients in a wide variety of legal matters, from the routine to the complex.

    So, without further ado...welcome to our blog! We hope that you enjoy reading it as much as we enjoy writing it! And if the mood should strike you, please know that your comments, questions and suggestions are always welcome to

How can we help you today?

80-02 Kew Gardens Road Suite 307 Kew Gardens, New York 11415 Tel (718) 713-3499 Fax (718) 360-9670


We are passionate about your representation and believe that communication is key. Please contact us today to see how we can best help you.