According to an article posted on October 7, 2011 on Crain’s New York Business.com, fifteen percent (15%) of all residential sales in New York City were made by overseas-based buyers (most were all-cash deals).   The majority of the foreign investors were based in Russia, China, Brazil and Argentina.   Buyers from overseas presently account for one-third of the condo buyers and 15% of the total buyers in New York City, according to figures released on October 7, 2011 by residential brokerage Stribling & Associates.

As real estate attorneys here in NYC, we structure, draft, and negotiate real estate transactions involving foreign purchasers, to help avoid U.S. estate and gift taxes and minimize income taxes.  If you are a foreign national buyer or investor in real estate or looking to purchase a New York condo, coop, townhouse, or other real property, click here to read our Foreign Real Estate Investor’s Guide. Simple planning and corporate structuring can help a foreign investor avoid millions of dollars in U.S. estate and gift taxes and income taxes.

Click here to read our Foreign Real Estate Investor’s Guide: Simple planning and corporate structuring can help a foreign investor avoid millions of dollars in U.S. estate and gift taxes and income taxes.

New legislation, called the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, was passed by the United States Congress on December 16, 2010 and signed into law by President Barack Obama on December 17, 2010, which affects federal estate taxes.

A summary of the new law is as follows:

• As a temporary measure, for calendar years 2011 and 2012 the Federal Estate Tax Exemption amount is 5 million dollars for persons dying during those years.

• The highest estate tax bracket will be 35%.

• Estate taxes remain a lien on real property for 10 years from the date of death.

• A surviving spouse can continue to convey free of the lien of estate taxes to a purchaser for value.

• As a temporary measure, the step-up in income tax basis has been continued for persons dying in 2011 and 2012 will go to the heirs, and give them a cost basis that is equal to the fair market value at the time of death.

• Raises the lifetime gift tax exemption to 5 million dollars for gifts made after January 1, 2011.

• As a temporary measure, the minimum gift tax rate during 2011 and 2012 is 35%.

If you have any questions about how the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 impacts your finances, you should speak with your financial planner or tax advisor.

Deciding what legal entity in which you buy and hold your real estate is important.  You should to consult with your financial and tax advisors along with your New York real estate attorney to figure out the right legal entity.  You should consider, among other things, the type investment property, the amount of equity and debt at stake, revenue projections and other matters like management of the property itself.

Generally, a Limited Liability company (an LLC), is the proper entity to hold investment real estate.

• Like a corporation, the members’ liability is limited to their capital investment (absent any contractual personal guaranties).  Structured properly, liability incurred on one property will not impact other real estate that is owned.

• An LLC can elect to be taxed as a partnership – with the profit and loss of the investment passed through to the members’ individual tax returns.

• An LLC has less legal formalities than other corporate structures. See my article, “Why Choose a Limited Liability Company (LLC) over a Corporation For Your Small Business?“

• There are numerous advantages in using an LLC for Section 1031 tax deferred exchanges and for estate planning.  For instance, if properly structured, the value of a gifted LLC membership interest could be done at discount (e.g., a controlling interest has greater intrinsic value over a minority interest).

You should consider hiring a New York real estate lawyer early in the process.  He or she will work closely with your tax and financial advisors to help structure your investment real estate holdings in the best way possible and can guide you through the real estate buying process by preparing and negotiating the real estate broker agreement, drafting the contract of sale, negotiating lender agreements (notes and mortgages), IRS Section 1031 exchange planning, among other things.

**This post is for informational purposes only, For legal advice contact a business and commercial real estate lawyer**

In most cases, you have one shot at impressing potential buyers.  Don’t take it personally separate yourself from the personal feelings you have about the home (it’s not your home now, it’s a commodity you intend to market).  If you were buying the condo, coop or home, what would you think about the home?  Take a close look at the condition of your home and prepare your home (condo or coop) for showings. You may be rewarded with a faster sale at a higher price.

Start with the basics. Everything from floors to windows must be spotless (including your appliances).  Have the apartment professionally cleaned.  Offensive odors are a BIG turn-off – eliminate bad odor sources.

Eliminate the clutter.   Hide small kitchen appliances and other items that are sitting on countertops and tables; remove photographs from table-tops and organize the closets.  Pack up the bulk of large, personal collections.

Make it more spacious.  Remove excess furniture to make rooms more spacious.  Consider storing boxes and unnecessary furniture in a temporary off-site mini-storage space.

Expose Desirable Features.  Remove rugs if they expose nice hardwood floors; remove heavy drapes that keep out natural light.

Repair and repaint.  Apply a fresh coat of neutral colored paint; replace broken lighting, bath and kitchen fixtures; use bright bulbs; fix all squeaks and leaks; patch walls; and make sure all doors operate smoothly.

Create an Atmosphere.   On days of showings: turn on all the lights, and fill the home with a pleasing smell by placing fresh-cut fragrant flowers on a table or by simmering a small pot of water with vanilla extract.

You should consider hiring a New York real estate lawyer early in the process.  He or she will guide you through the home (condo or coop) selling process by preparing and negotiating the real estate broker agreement, drafting the contract of sale, answering your legal and tax questions, and arranging for the documents necessary to complete the sale, among other things.

Cooperative apartments (“coops”) differ from condominiums (“condos”) in several ways.  When you buy a coop, you buy stock in the corporation that owns the apartment building.  The building then “leases” the coop to the buyer under a long-term proprietary lease.  Coop owners pay monthly maintenance to the building corporation for items such as the expenses of maintaining and operating the building property, property taxes and the underlying mortgage on the building (if any).

When you buy a condo, you buy an individual parcel of real property, like a house or townhouse.  The condo building is divided into individual condos and a common area.  A condo owner owns its apartment and an undivided interest in the common area and is responsible to pay its own real estate taxes and its share of the common charges for the expenses to maintain and operate the common areas.  Unlike a coop building, there is no underlying mortgage on a condo building.

Generally, a condo has a higher value than a comparably sized coop; however, a condo buyer has additional closing costs for title insurance and mortgage recording taxes.  Depending on the coop building, the tax deductibility percentage of the monthly maintenance charges may differ.

You should consider consulting with a New York condo attorney or coop lawyer once you find an apartment you want to buy.  He or she will guide you through the home buying process by preparing or reviewing the contract of sale, advising you about financing and title insurance, answering your legal and tax questions, and arranging for the documents necessary to complete the purchase.

Manhattan home ownership—whether a condo, coop, or townhouse—can provide you with many benefits, including, a long-term investment and tax advantages. Of course, a home is also a major financial commitment.  There are ways to avoid costly pitfalls that can strain your budget and your patience.

At the time of the closing, you will have to pay the price for the home and closing costs. Thereafter, you will need to budget for insurance premiums, maintenance, monthly loan payments, property taxes, utility bills, and repairs. Prior to entering into a contract of sale, it is recommended in some cases that a buyer conducts an inspection of the home, which includes, checking the age and condition of appliances, plumbing, roof, structures and wiring, and other physical elements of the home.

A New York real estate lawyer guides you through the home buying process by preparing or reviewing the contract of sale, advising you about financing and title insurance, answering your legal and tax questions, and arranging for the documents necessary to complete the purchase.

You should not sign a contract of sale unless it protects your rights.  Your New York condo lawyer reviews and amends the contract of sale accordingly. Any conditions that must be met before you complete a home purchase should be stated in your contract of sale.  For example, many buyers make their home purchase contingent upon obtaining financing.

The “closing” of a contract of sale completes the purchase and takes place at a meeting in the offices of the New York coop attorney representing the seller or lender, if any, or at a location designated by the coop corporation. At the closing, the buyer, seller, and lender sign a deed and mortgage (for a condo or townhouse) or the stock and proprietary lease documents and the security agreement (for a coop), pay the purchase price and exchange documents. At the closing, the buyer may receive a title insurance policy, along with a statement of closing charges and the keys to the home. Your NY real estate lawyer attends the closing to assure that the documents and computation of closing costs are accurate.

Find a broker with whom you are comfortable. A broker can: (1) research comparable sales in your neighborhood and has an accurate understanding of the current market (newspaper “asking prices” may be misleading); (2) provide you with a realistic selling time frame, set up a sales promotion plan, advertise the property for you, and adjust the marketing strategy if needed; and (3) recommend any possible improvements to your home to enhance marketability. Generally, brokers have access to the sales efforts of other brokers—your broker has a vested interest in selling your home, he or she will utilize all outlets available to close your deal expeditiously. Keep in mind the following can influence your home’s exposure, among other things: the commission rate, permitting your listing broker to “co-broke” with other brokers, and use of technology (use of real-time market conditions, placing a “virtual tour” of your home on the internet, etc.).

You should have your New York real estate attorney review the brokerage agreement prior to your signing to make sure it protects your interests.

Generally, it is not a good idea for the owner to be present when a prospective buyer is viewing the apartment. Buyers do not ask the candid questions they need answered in the presence of the owner nor do they examine the property as thoroughly as they’d like to, for fear of disturbing the owner. Find a broker that has the sales experience to sense which qualities of the property to highlight and which to minimize. Also, a broker will be able to sell your home without emotional involvement. A broker qualifies prospective buyers (including conducting credit checks), so that you will have a purchaser who will qualify for a mortgage and pass the board, if applicable. Lastly, if you do receive multiple offers, the broker can help you evaluate which offer is the best (sometimes, it is not the highest offer but the most qualified buyer to whom you will sell).

If the prospective buyer needs financing, the real estate broker can recommend a mortgage banker, broker or a choice of banks that offer co-op or condo loans on your building. They can also recommend New York real estate attorneys and coordinate access to the property by appraisers and engineers. They also facilitate expediting the board approval process and help find the answers to questions or concerns raised by the seller and buyer.