USA - NEW YORK Law and Practice Contributed by: Adam S. Walters, Erin C. Borek, Timothy P. Moriarty and Kelly E. Marks, Phillips Lytle LLP
Under the federal Comprehensive Environmen - tal Response, Compensation, and Liability Act (CERCLA), current owners and operators of a property are, except in limited circumstances, strictly liable for all response and remediation costs regarding hazardous wastes and sub - stances that were released on a property, unless a statutory defence is established. These include acts of God or war, acts of third parties, and landowner liability protections, such as the inno - cent landowner defence, bona fide prospective purchaser defence, and contiguous property owner defence. If the buyer spends money to clean up the con - tamination caused by others, there are contri - bution claims available under state and federal laws. 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law A buyer can ascertain the permitted uses of a parcel of real estate by undertaking an analysis of the applicable zoning map and code to iden - tify the zoning district of the parcel in question and the uses permitted by right in that district, as well as the uses permitted upon issuance of a special use permit. In addition, a buyer should review the applicable zoning code to determine the associated bulk requirements. Further back - ground is often available in a municipality’s land use/comprehensive plan. See 4.6 Agreements With Local or Governmental Authorities . 2.9 Condemnation, Expropriation or Compulsory Purchase Governmental taking through eminent domain or condemnation is a possible risk in this juris - diction. While there is only a slight risk that a governmental taking will occur, it appears more prevalent along rights of way to accommodate
roadway-widening projects or the installation of public utilities. The governmental taking process in New York State is codified in the New York Eminent Domain Procedure Law, and allows for condemnation by the filing of an appropriate map with the appli - cable county clerk (at which time the property set forth in the map vests in the governmental agency), or filing of petition to condemn, which seeks an order allowing the filing of an acquisi - tion map. The title vests in the condemning party upon the filing of the acquisition map. The condemning party is required to pay just compensation (defined as the fair market value of the property) to the former owner of the prop - erty that was acquired through condemnation. 2.10 Taxes Applicable to a Transaction For the transfer of real estate, a transfer tax is due to the New York State Department of Taxa - tion and Finance, and is paid to the applicable county clerk upon recordation of a deed. In order to record a deed, a transfer tax return (form TP-584) must be presented to the county clerk. The state transfer tax is USD2 for every USD500 of consideration paid or the fair market value of the real property. Local municipalities may also impose a separate transfer tax, which varies by county. Transfer tax and the cost of filing a form TP-584 are customarily seller expenses, although this can be negotiated. Additionally, the “Mansion Tax” – imposed on the conveyance of residential real property where the consideration is USD1 million or more – has a tax rate of one percent of the consideration paid, customarily paid by the purchaser. Transfers of real property in New York City may be subject to additional taxes.
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