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Home buyers: Beware of what (or who) may have been in your dream home before you got there!
This article, written by Long Island and New York City attorney Elan Wurtzel, tells an interesting tale of home buying clients who were very close getting much more from their purchase than they bargained for.
The takeaway? When you are making what could be the most expensive purchase of your lifetime, being represented and protected by a top-notch professional is critically important.
‘Poltergeist?’ by Elan Wurtzel, Esq.
“a spirit believed to manifest its presence by rappings and other noises and also by acts of mischief, such as throwing furniture about” Collins English Dictionary – Complete & Unabridged 10th Edition (On-Line Version)
Remember the movie Poltergeist, where a new house was inhabited by spirits because it was built on burial grounds without removing the remains? It was a scary movie and very entertaining. But is that something that really happens? Is it real or fantasy?
In the early 1980s one of my clients was looking to buy a home in the Plainview area.
After a long search they decided to buy a sprawling ranch which was built on multiple lots and included an in-ground pool. It was the perfect place to raise a family.
A generation ago, much of the Plainview area had been farmland, which was developed after World War II. In its heyday, this particular area of Plainview had been rolling farmland, situated on the western edge of West Hills with small streams and ponds dotting the area. It had all the elements of Paradise and the present residential development had some of those characteristics which made the house and neighborhood very attractive.
A contract was negotiated and signed by all parties. A title report was ordered to investigate the ownership history, liens, easements and any other encumbrance that could affect title. Importantly, the contract contained provisions that the Seller would deliver good title at the closing and made a representation that the property could be used as a single family home.
The title search was revealing. Over a hundred years earlier, the entire tract was used as a family farm, owned by a local family. After World War II, the zoning of the tract was changed from agriculture use to residential development of single family homes. The parcel that the house was located on was actually the site of the family cemetery. Filed maps from the 1800s showed the location of the cemetery and its boundaries. The in-ground pool was actually built within the boundaries of the cemetery!
According to the title company, based on the filed map and use of the property, the permitted and legal use of the land was not residential housing–but cemetery lands. Further investigation revealed that there was no evidence that the formal, legal use of the land had been changed or that the human remains in the cemetery were ever disinterred and moved to another location. It was entirely possible that the house and in-ground pool were built on lands used as a cemetery with human remains either disturbed or still under ground.
Needless to say, my clients were disturbed by this news. We demanded that they take action: change the use of the property from cemetery lands to residential (a long and expensive process) or refund the down payment.
The seller was in a quandary. He was unaware of this title defect in this property–his own title insurance company did not discover the issue and insured his title to the property as well as its use for residential purposes. The seller’s title company offered to insure the buyers’ title without any reservations; this offer was declined. Insuring the title defect, without resolving it, was the easy way out and would present issues in any future sales. Additionally, the issue of poltergeists in the pool was a concern.
The seller refused to take any action. Immediately, buyers commenced a lawsuit seeking the return of their down payment, claiming that the seller breached the contract by failing to return the down payment when it was obvious good title could not be delivered and by making false representations about the legal use of the house. Buyers were victorious in the lawsuit and the down payment was returned. My clients found another house.
Because the Seller had title insurance, his title company was required to take legal action to clear title. The company commenced a proceeding to change the legal use of the property and had to locate and identify all of the surviving heirs of the family that originally used the land for cemetery purposes. The proceeding was expensive and time consuming–and until it was cleared up, the seller couldn’t sell his house.
Title insurance is critical–working with a company that diligently does its work and goes the extra mile always pays off. The meticulous search of our title company saved the day.
But what happened to the poltergeists? The house has been occupied since the 1980s–with a real live family. The poltergeists may only be in the pool……
Elan Wurtzel is a respected and successful attorney with over 30 years’ experience protecting the rights of clients throughout New York State, including Long Island and New York City. Elan’s offices are located in Plainview; his practice includes Negligence & Personal Injury Law, Family Law, Estate Planning, Real Estate and General Litigation. He’s admitted to the NY & NJ bars as well as all of the local Federal Courts and the United States Supreme Court. Elan attended NYU School of Law and Queens College in Flushing, Queens.
He is committed and passionate about providing caring and quality services to his clients. Being a lawyer has enabled Elan to use the law to find solutions and make an impact on people’s lives: recovering from a serious accident, going through a difficult divorce or planning for the future. His tag line is,
Quality Representation You Need…..Respect, Compassion & Attention You Deserve
Elan can be reached by phone at 516.822.7866, by email at firstname.lastname@example.org or at his website, Law Offices of ELAN WURTZEL, P.C.
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