NY State Senate Bill 2015-S5128

Senate Bill S5128

2015-2016 Legislative Session

Relates to land banks, including their powers, exemptions from fee clerks, access to property, liability exemptions, disposition of property and authority to hold title to real property

download bill text pdf

Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 08, 2016	recommit, enacting clause stricken
Jan 06, 2016	referred to corporations, authorities and commissions
May 04, 2015	referred to corporations, authorities and commissions

2015-S5128 (ACTIVE) - Details

Law Section:: Not-for-Profit Corporation Law
Laws Affected:: Amd §§1607, 1608 & 1609, add §§1608-a & 1608-b, N-PC L

2015-S5128 (ACTIVE) - Summary

Relates to powers of a land bank, land bank exemptions from fee clerks, access to parcels of property that land banks may acquire, land bank liability exemptions, the disposition of property by a land bank and a land bank's authority to hold title to real property.

2015-S5128 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5128                 REVISED 5/4/15

TITLE OF BILL:  An act to amend the not-for-profit corporation law, in
relation to land banks

Purpose:  To amend the Land Bank act to allow Land Banks to operate more
efficiently and effectively.

Summary of Provisions:

Section one of the bill would allow land banks to receive grants and
loans facilitate a better stock of land, attract buyers, hold mortgages
- all of which are within the enumerated purposes of land banks.

Section two of the bill would waive recording fees for land banks as
they transfer property as part of a legitimate State purpose.

Section three of the bill would authorize land banks to inspect the
property before taking title, just as municipalities are authorized to
do.

Section four of the bill would extend indemnification to land banks in
the event of discovery of environmental contamination similar to that of
municipalities.

Section five of the bill is a series of technical changes that amelio-

rates conflicts of law that were present when the Land Bank Act was
enacted.

Section six of the bill would authorize land banks to establish subsid-
iaries to hold title to property, a common practice in real property
transfers.

Justification:  The amendment to the Land Bank Act provides common sense
changes to the way land banks operate so that land banks can carry out
their enumerated purpose with the authorizations that are common to
entities that are like land banks in that they are taking on title of
properties in a less than voluntary situation. Further, the public bene-
fit provided and demonstrated by land banks justifies the additional
authorizations that would allow land banks to better serve the communi-
ties in which they operate. Below is a section by section explanation of
the benefits of these changes.

I. The Authority Budget Office has taken the position that local public
authorities, which include land banks, do not have the power to lend
money, make grants or organize subsidiaries unless expressly authorized
to do so by enabling legislation, even when such actions are in further-
ance of an enumerated purpose. Amendments are proposed to the Land Bank
Act granting such additional powers to land banks.

II. Land banks incur substantial fees in the recording of documents with
County Clerks which diverts valuable public resources from the mission

and purpose of land banks. An amendment to the Land Bank Act is proposed
to exempt land banks from such fees.

III. Land banks typically acquire abandoned or tax delinquent properties
from absent or uncooperative owners. Often, they are unable to legally
access such properties prior to purchase and therefore cannot perform
due diligence into the environmental condition of such parcel prior to
ownership. That potentially prevents land banks from asserting statutory
defenses and exposes them to liability for the costs of remediation. An
amendment to the Land Bank Act is proposed to provide land banks with
temporary incidents of ownership sufficient to authorize such access
prior to transfer, without incurring liability based upon ownership.

IV. Land banks are tasked with acquiring vacant, abandoned and delin-
quent properties to facilitate their return to productive use, In the
event a land bank acquires environmentally contaminated real property,
the public assets of a land bank are potentially exposed to liability
which could include significant remediation costs. An amendment to the
Land Bank Act is proposed to provide liability protections to land banks
similar to those which are already available to municipalities, as land
banks are not typical voluntary buyers.

V. Section 1609 of the Land Bank Act, entitled Disposition of Property,
sets forth detailed requirements concerning the disposition of property
by land banks. As local public authorities, land banks are simultaneous-
ly required to comply with § 2897 of the Public Authorities Law, simi-
larly entitled Disposal of public authority property. The public author-
ity disposition provisions overlap, contradict and impair the
disposition provisions in the Land Bank Act as the public authority
provisions are designed to address the sale of property by a public
authority which is not regularly engaged in the disposition of property.
Inherent in the primary mission and purpose of land banks is the regular
disposition of property in the ordinary course of its day to day oper-
ations. Section 1609 of the Land Bank Act correctly anticipated such
activity and vested a land bank, its board of directors and its fore-
closing governmental units with, among other powers, the authority to
establish the terms and conditions of the consideration received by a
land bank for the transfer of its property, to establish hierarchical
rankings of priorities for the use of property conveyed by a land bank
and to impose specified voting and approval requirements of its board of
directors. The requirement that land banks comply with both disposition
statutes impedes the efficient and effective return of vacant, aban-
doned, and tax-delinquent properties to productive use and was likely
not the intent of the drafters of the Land Bank Act.  An amendment to
the Land Bank Act is proposed stating that § 1609 is intended to super-
sede § 2897 of the Public Authorities Law.

VI. An amendment to the Land Bank Act is proposed to authorize a land
bank to hold title to real property in the name of a lawfully organized
subsidiary in accordance with Section I above.

Previous Legislation: None.

Fiscal Impact: To be determined.

Effective Date: This bill shall take effect 90 days after enactment.

2015-S5128 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5128

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               May 4, 2015
                               ___________

Introduced  by  Sen. VALESKY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Corporations,  Authorities
  and Commissions

AN  ACT to amend the not-for-profit corporation law, in relation to land
  banks

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Paragraphs 20 and 21 of subdivision (a) of section 1607 of
the not-for-profit corporation law, as added by chapter 257 of the  laws
of 2011, are amended to read as follows:
  (20)  to  enter in agreements with a foreclosing governmental unit for
the distribution of revenues to the foreclosing  governmental  unit  and
school district; [and]
  (21)  to  do  all other things necessary to achieve the objectives and
purposes of the land bank or other laws that relate to the purposes  and
responsibility of the land bank[.];
  S 2. Subdivision (a) of section 1607 of the not-for-profit corporation
law  is  amended  by  adding  two  new  paragraphs  22 and 23 to read as
follows:
  (22) TO LEND MONEY, TO MAKE GRANTS AND TAKE AND HOLD REAL AND PERSONAL
PROPERTY AS SECURITY FOR THE PAYMENT OF  FUNDS  SO  LOANED  OR  FOR  THE
PERFORMANCE AND ENFORCEMENT OF GRANT AGREEMENTS; AND
  (23) TO ORGANIZE A SUBSIDIARY FOR A PROJECT OR PROJECTS WHICH THE LAND
BANK HAS THE POWER TO PURSUE HEREUNDER WHEN THE PRIMARY REASON FOR WHICH
THE  SUBSIDIARY  SHALL  BE  ORGANIZED  SHALL  BE  TO LIMIT THE POTENTIAL
LIABILITY IMPACT OF THE SUBSIDIARY'S PROJECT OR  PROJECTS  ON  THE  LAND
BANK  OR  BECAUSE  STATE  OR  FEDERAL LAW REQUIRES THAT THE PURPOSE OF A
SUBSIDIARY BE UNDERTAKEN THROUGH A SPECIFIC CORPORATE OR BUSINESS STRUC-
TURE AND AS LONG AS THE SUBSIDIARY CORPORATION SHALL  MAKE  THE  REPORTS
AND  OTHER  DISCLOSURES  AS  ARE  REQUIRED  OF LOCAL PUBLIC AUTHORITIES,
UNLESS THE SUBSIDIARY'S OPERATIONS AND FINANCES  ARE  CONSOLIDATED  WITH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10202-01-5

S. 5128                             2

THOSE  OF THE LAND BANK OF WHICH IT IS A SUBSIDIARY.  SUBSIDIARIES SHALL
NOT HAVE THE AUTHORITY TO ISSUE BONDS, NOTES OR OTHER  DEBTS,  PROVIDED,
HOWEVER,  THAT  SUCH  SUBSIDIARIES  MAY ISSUE NOTES OR OTHER DEBT TO THE
LAND  BANK  OF  WHICH  IT  IS A SUBSIDIARY. THE ORGANIZATIONAL DOCUMENTS
FILED TO ORGANIZE A SUBSIDIARY HEREUNDER SHALL STATE THAT THE LAND  BANK
IS ORGANIZING THE SUBSIDIARY.
  S 3. Subdivision (a) of section 1608 of the not-for-profit corporation
law,  as added by chapter 257 of the laws of 2011, is amended to read as
follows:
  (a) The real property of a land bank and its income and operations are
exempt from all taxation by the state of New York  and  by  any  of  its
political  subdivisions.  NOTWITHSTANDING  ANY OTHER GENERAL, SPECIAL OR
LOCAL LAW RELATING TO FEES OF CLERKS, NO CLERK SHALL CHARGE OR COLLECT A
FEE FOR FILING, RECORDING  OR  INDEXING  ANY  PAPER,  DOCUMENT,  MAP  OR
PROCEEDING  FILED,  RECORDED  OR  INDEXED FOR A LAND BANK, OR AN OFFICER
THEREOF ACTING IN AN OFFICIAL CAPACITY, NOR FOR FURNISHING A TRANSCRIPT,
CERTIFICATION OR COPY OF ANY PAPER, DOCUMENT, MAP OR  PROCEEDING  TO  BE
USED FOR LAND BANK PURPOSES.
  S  4.  The not-for-profit corporation law is amended by adding two new
sections 1608-a and 1608-b to read as follows:
S 1608-A. ACCESS TO REAL PROPERTY PRIOR TO ACQUISITION.
  NOTWITHSTANDING ANY GENERAL, SPECIAL OR LOCAL LAW OR ORDINANCE TO  THE
CONTRARY:
  (A) TO CARRY OUT THE POWERS, DUTIES AND GOALS IDENTIFIED IN THIS ARTI-
CLE,  LAND  BANKS  SHALL BE AUTHORIZED, IN ACCORDANCE WITH THE PROCEDURE
DESCRIBED IN THIS SECTION, TO ACCESS ANY TAX DELINQUENT PARCEL  OF  REAL
PROPERTY  THAT  THE  LAND  BANK  INTENDS TO ACQUIRE FROM ANY FORECLOSING
GOVERNMENTAL UNIT, IN ORDER TO DETERMINE THE PHYSICAL CONDITION  OF  ANY
BUILDINGS  OR  STRUCTURES ON SUCH PARCEL, OR TO ASSESS THE ENVIRONMENTAL
CONDITION OF SUCH PARCEL.  IF  DEEMED  APPROPRIATE,  SUCH  ACCESS  SHALL
INCLUDE  THE  ABILITY TO ENGAGE AN ENVIRONMENTAL PROFESSIONAL TO CONDUCT
"ALL APPROPRIATE INQUIRIES" INTO THE FORMER USE AND  OWNERSHIP  OF  SUCH
PROPERTY,  IN  ORDER TO DETERMINE WHETHER HAZARDOUS MATERIALS, HAZARDOUS
SUBSTANCES OR OTHER CONTAMINANTS WERE PREVIOUSLY RELEASED OR DISPOSED OF
ON SUCH PARCEL, CONSISTENT WITH GOOD COMMERCIAL AND CUSTOMARY PRACTICE.
  (B) FOLLOWING THE COMMENCEMENT OF A PROCEEDING TO FORECLOSE A TAX LIEN
BY THE TAXING DISTRICT HAVING ANY RIGHT, TITLE OR INTEREST  IN  OR  LIEN
UPON ANY PARCEL, A LAND BANK MAY, UPON NOT LESS THAN TWENTY DAYS' NOTICE
TO  ALL  PARTIES  HAVING RIGHT, TITLE, OR INTEREST IN, OR LIEN UPON SUCH
PARCEL, MOVE, AT A SPECIAL TERM IN THE COURT IN  WHICH  THE  FORECLOSURE
PROCEEDING  WAS  INITIATED,  OR  IF SUCH PROCEEDING IS AN ADMINISTRATIVE
PROCEEDING PURSUANT TO THE PROVISIONS OF A COUNTY CHARTER, CITY CHARTER,
ADMINISTRATIVE CODE, OR SPECIAL LAW WHEN APPLICABLE UNDER SECTION ELEVEN
HUNDRED FOUR OF THE REAL PROPERTY TAX LAW, THEN SUCH MOTION SHALL BE  AT
A  SPECIAL  TERM  OF THE STATE SUPREME COURT IN THE COUNTY IN WHICH SUCH
PARCEL IS LOCATED, FOR AN ORDER GRANTING THE  LAND  BANK  THE  TEMPORARY
INCIDENTS  OF  OWNERSHIP OF SUCH PARCEL FOR THE SOLE PURPOSE OF ENABLING
IT AND ITS AGENTS TO ENTER THE PARCEL TO CONDUCT VISUAL  INSPECTION  AND
SUCH  FURTHER ENVIRONMENTAL INVESTIGATION OF THE PARCEL AS THE LAND BANK
DEEMS NECESSARY IN  ORDER  TO  DETERMINE  WHETHER  HAZARDOUS  MATERIALS,
HAZARDOUS  SUBSTANCES  OR OTHER CONTAMINANTS WERE PREVIOUSLY RELEASED OR
DISPOSED OF ON SUCH PARCEL.  SUCH INSPECTION MAY INCLUDE INVASIVE  TEST-
ING,  INCLUDING  BUT  NOT  LIMITED TO SAMPLING OF SURFACE AND SUBSURFACE
SOIL AND/OR GROUNDWATER, AS IS CONSIDERED BY  AN  ENVIRONMENTAL  PROFES-
SIONAL TO BE NECESSARY AND CONSISTENT WITH GOOD COMMERCIAL AND CUSTOMARY
PRACTICE  FOR CONDUCTING "ALL APPROPRIATE INQUIRIES" INTO THE FORMER USE

S. 5128                             3

AND CONDITION OF SUCH PARCEL. FOLLOWING ANY SUCH INVASIVE  TESTING,  THE
LAND  BANK  SHALL  RETURN  THE PARCEL, TO THE EXTENT PRACTICABLE, TO THE
CONDITION IT WAS IN BEFORE THE INVESTIGATION.
  (C)  UNLESS PRIOR TO THE RETURN DATE OF THE MOTION BROUGHT PURSUANT TO
THIS SECTION THE PROPERTY HAS BEEN REDEEMED  BY  THE  PARTY  HAVING  THE
RIGHT OF REDEMPTION, THE COURT SHALL ENTER AN ORDER GRANTING SUCH RELIEF
TO THE LAND BANK. SUCH ORDER SHALL BE GRANTED UPON SUCH TERMS AND CONDI-
TIONS  AS  THE COURT SHALL DEEM JUST AND PROPER TO PERMIT THE INSPECTION
TO OCCUR UNHINDERED AS WELL AS TO PROTECT THE  INTERESTS  OF  ALL  OTHER
PARTIES HAVING AN OWNERSHIP INTEREST IN THE PARCEL. SUCH ORDER SHALL ACT
AS A STAY TO THE FORECLOSURE ACTION ON SUCH PARCEL OF PROPERTY UNTIL THE
INSPECTION HAS BEEN COMPLETED AND A REPORT OF THE INVESTIGATION HAS BEEN
FILED WITH THE COURT.
  (D)  SUCH  TEMPORARY  INCIDENTS OF OWNERSHIP IN THE PARCEL BY THE LAND
BANK SHALL NOT BE SUFFICIENT OR CONSTRUED TO CONSTITUTE ACTUAL OWNERSHIP
OF THE PARCEL FOR PURPOSES OF ANY  APPLICABLE  ENVIRONMENTAL  LAW  WHICH
CONFERS  LIABILITY  FOR  DAMAGES  CAUSED BY THE RELEASE OF ANY HAZARDOUS
MATERIAL, SUBSTANCE OR CONTAMINANT, UNLESS  SUCH  RELEASE  WAS  ACTUALLY
CAUSED BY THE LAND BANK.
  (E)  WITHIN  THIRTY  DAYS  FOLLOWING THE COMPLETION OF THE INSPECTION,
INCLUDING RECEIPT OF A  FINAL  REPORT  RECEIVED  FROM  AN  ENVIRONMENTAL
PROFESSIONAL CONDUCTING THE INSPECTION, IF ANY, THE LAND BANK SHALL FILE
ANY SUCH REPORT, OR A DESCRIPTION OF THE RESULTS OF THE INSPECTION IF NO
FORMAL  ENVIRONMENTAL  INVESTIGATION  OF THE PARCEL WAS UNDERTAKEN, WITH
THE COURT ON NOTICE TO THE COURT AND ALL OTHER PARTIES  OF  RECORD,  AND
THE  STAY OF THE FORECLOSURE SHALL BE LIFTED (UNLESS LIFTED EARLIER BY A
PRIOR COURT ORDER), AND ALL INCIDENTS OF TEMPORARY OWNERSHIP OF THE LAND
BANK THAT WAS AWARDED TO SUCH LAND BANK, SHALL CEASE TO EXIST, AND NOTH-
ING IN THIS SUBDIVISION SHALL PRECLUDE THE LAND BANK THAT CONDUCTED  THE
INSPECTION  FROM  MAKING  A  DETERMINATION NOT TO ACQUIRE THE PARCEL, OR
PRECLUDE THE TAXING JURISDICTION THAT COMMENCED THE FORECLOSURE  ACTION,
FROM  WITHDRAWING THE PARCEL FROM FORECLOSURE PURSUANT TO SECTION ELEVEN
HUNDRED THIRTY-EIGHT OF THE REAL PROPERTY TAX LAW  OR  PURSUANT  TO  THE
PROVISIONS  OF  A  COUNTY CHARTER, CITY CHARTER, ADMINISTRATIVE CODE, OR
SPECIAL LAW WHEN APPLICABLE UNDER SECTION ELEVEN  HUNDRED  FOUR  OF  THE
REAL PROPERTY TAX LAW.
S 1608-B. LIABILITY EXEMPTION AND DEFENSES.
  NOTWITHSTANDING  ANY GENERAL, SPECIAL OR LOCAL LAW OR ORDINANCE TO THE
CONTRARY:
  IN CARRYING OUT THE POWERS, DUTIES AND GOALS IDENTIFIED IN THIS  ARTI-
CLE  WITH  RESPECT TO THE ACQUISITION AND OWNERSHIP OF VACANT, ABANDONED
OR TAX DELINQUENT REAL PROPERTY, NO LAND BANK ORGANIZED PURSUANT TO THIS
TITLE SHALL INCUR LIABILITY FROM  ANY  STATUTORY  CLAIMS  OF  THE  STATE
RELATING  TO  THE  PRESENCE,  RELEASE  OR  DISPOSAL  OF HAZARDOUS WASTE,
HAZARDOUS SUBSTANCES, PETROLEUM OR OTHER CONTAMINANTS ON REAL  PROPERTY,
BY  VIRTUE OF ITS ACQUISITION AND OWNERSHIP OF ANY PROPERTY CONTAMINATED
BY SUCH  HAZARDOUS  WASTE,  HAZARDOUS  SUBSTANCES,  PETROLEUM  OR  OTHER
CONTAMINANTS, PROVIDED THAT THE FOLLOWING CONDITIONS ARE MET:
  (A)  SUCH  PROPERTY  CONSTITUTED  VACANT,  ABANDONED OR TAX DELINQUENT
PROPERTY AND WAS ACQUIRED BY  THE  LAND  BANK  TO  EFFECT  THE  PURPOSES
DESCRIBED IN SECTION SIXTEEN HUNDRED ONE OF THIS ARTICLE;
  (B)  THE  RELEASE  OR  DISPOSAL  OF  THE  HAZARDOUS  WASTE,  HAZARDOUS
SUBSTANCES, PETROLEUM OR OTHER CONTAMINANTS OCCURRED BEFORE THE ACQUISI-
TION OF THE PROPERTY BY THE LAND BANK;
  (C) THE LAND BANK DID NOT  CAUSE  OR  CONTRIBUTE  TO  THE  RELEASE  OR
THREATENED  RELEASE OF THE HAZARDOUS WASTE OR PETROLEUM FROM OR ONTO THE

S. 5128                             4

PROPERTY, OR GENERATE, TRANSPORT, OR DISPOSE OF SUCH HAZARDOUS WASTE  OR
PETROLEUM,  OR  ARRANGE FOR, OR CAUSE THE GENERATION, TRANSPORTATION, OR
DISPOSAL OF HAZARDOUS WASTE, FROM OR ONTO THE SITE; AND
  (D)  SUCH  PROPERTY  WAS  ACQUIRED  BY  THE LAND BANK EITHER DIRECTLY,
THROUGH FORECLOSURE OF A TAX LIEN, OR,  WAS  ACQUIRED  FROM  ANY  PUBLIC
CORPORATION,   AS   DEFINED   IN   SECTION  SIXTY-FIVE  OF  THE  GENERAL
CONSTRUCTION LAW FOLLOWING THE INVOLUNTARY ACQUISITION OF OWNERSHIP  AND
CONTROL BY SUCH PUBLIC CORPORATION, INCLUDING BUT NOT LIMITED TO:
  (1)  ACQUISITIONS  BY  A PUBLIC CORPORATION IN ITS SOVEREIGN CAPACITY,
INCLUDING BUT  NOT  LIMITED  TO  ACQUISITIONS  PURSUANT  TO  ABANDONMENT
PROCEEDINGS OR BEQUESTS;
  (2)  ACQUISITIONS  BY  A PUBLIC CORPORATION, OR ITS AGENT, ACTING AS A
CONSERVATOR OR RECEIVER PURSUANT TO A CLEAR AND DIRECT STATUTORY MANDATE
OR REGULATORY AUTHORITY;
  (3) ACQUISITIONS OF ASSETS THROUGH FORECLOSURE AND ITS EQUIVALENTS, OR
OTHERWISE, BY A PUBLIC CORPORATION IN  THE  COURSE  OF  ADMINISTERING  A
LOAN,  LOAN  GUARANTEE,  TAX LIEN, OR TAX FORBEARANCE AGREEMENT, OR LOAN
INSURANCE PROGRAM;
  (4) ACQUISITIONS BY A PUBLIC CORPORATION PURSUANT TO SEIZURE,  INJUNC-
TION,  CONDEMNATION,  OR FORFEITURE AUTHORITY; PROVIDED THAT SUCH OWNER-
SHIP OR CONTROL IS NOT RETAINED PRIMARILY FOR INVESTMENT PURPOSES.
  S 5. Section 1609 of the not-for-profit corporation law is amended  by
adding a new subdivision (a-1) to read as follows:
  (A-1) THIS SECTION GOVERNING THE DISPOSITION OF PROPERTY BY LAND BANKS
SHALL  SUPERSEDE SECTION TWENTY-EIGHT HUNDRED NINETY-SEVEN OF THE PUBLIC
AUTHORITIES LAW IN THE GOVERNANCE OF PROPERTY DISPOSITIONS BY LAND BANKS
AND, AS SUCH, NOTWITHSTANDING ANY OTHER GENERAL, SPECIAL OR LOCAL LAW TO
THE CONTRARY, SECTION TWENTY-EIGHT HUNDRED NINETY-SEVEN  OF  THE  PUBLIC
AUTHORITIES LAW SHALL NOT APPLY TO LAND BANKS.
  S 6. Subdivision (a) of section 1609 of the not-for-profit corporation
law,  as added by chapter 257 of the laws of 2011, is amended to read as
follows:
  (a) The land bank shall hold in its own name, OR  IN  THE  NAME  OF  A
LAWFULLY  ORGANIZED  SUBSIDIARY,  all real property acquired by the land
bank irrespective of the identity of the transferor of such property.
  S 7. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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