2023 New York Laws › RPA - Real Property Actions and Proceedings › Article 13 - Action to Foreclose a Mortgage › 1308 - Inspecting, Securing and Maintaining Vacant and Abandoned Residential Real Property.

§  1308.  Inspecting,  securing  and  maintaining vacant and abandoned
residential real property. Notwithstanding any other provision of law to
the contrary, the following subdivisions  of  this  section  shall  only
apply  to  vacant  and  abandoned  one  to  four family residential real
property, and any duties and  responsibilities  so  prescribed  by  this
section  shall  only apply to the first lien mortgage holder. Vacant and
abandoned residential real property shall be defined pursuant to section
thirteen hundred nine of this  article.  For  each  calendar  year  this
section  shall  not apply to state or federally chartered banks, savings
banks, savings and  loan  associations,  or  credit  unions  which:  (1)
originate,  own,  service  and  maintain  their  mortgages  or a portion
thereof; and (2) have less than three-tenths of one percent of the total
loans in the  state  which  they  either  originate,  own,  service,  or
maintain  for  the  calendar  year  ending  December thirty-first of the
calendar year ending two years prior to the current calendar  year.  For
any  state or federally chartered banks, savings banks, savings and loan
associations,  or  credit  unions  which  originate,  own,  service  and
maintain  between  three-tenths  of  one  percent and five-tenths of one
percent of the total loans in the state  which  they  either  originate,
own,  service,  or  maintain  for  the  calendar  year  ending  December
thirty-first of the calendar year ending two years prior to the  current
calendar  year,  the  application  of  this section shall be prospective
only.
1. Subject to bankruptcy filings, cease and desist orders, threats  of
violence,  or  active  loss  mitigation efforts, within ninety days of a
borrower's delinquency, the servicer authorized to accept payment of the
loan shall complete an exterior inspection of the  subject  property  to
determine occupancy. Thereafter, throughout the delinquency of the loan,
the  servicer shall conduct an exterior inspection of the property every
twenty-five to thirty-five days, at different times of the day.
2. If a borrower is delinquent and  subject  to  property  inspections
pursuant  to  subdivision one of this section, the servicer shall secure
and maintain the residential  real  property  pursuant  to  subdivisions
three, four, five, six, and seven of this section where the servicer has
a  reasonable  basis  to  believe  that the residential real property is
vacant and abandoned, as defined in section  thirteen  hundred  nine  of
this  chapter,  and  is  not  otherwise  restricted  from  accessing the
property.
3. Within seven business days of  determining  that  the  property  is
vacant  and abandoned based on the criteria set forth in subdivision two
of this  section,  the  servicer  shall  post  a  notice  on  an  easily
accessible  part of the property that would be reasonably visible to the
borrower, property owner or occupant, and monitor the property  for  any
change  in  occupancy  or  contact  with the borrower, property owner or
occupant, and monitor to ensure that the notice remains posted  so  long
as  the  duty  to  maintain applies. The posted notice shall provide the
servicer's toll free number or similar contact information.
4. If the posted notice is not responded  to  or  persists  for  seven
consecutive  calendar  days  without contact with the borrower, property
owner or  occupant  indicating  that  the  property  is  not  vacant  or
abandoned,  or  if  an emergent property condition that could reasonably
damage, destroy or harm the property arises, the servicer shall:
(a) in cases where the property contains two or more points of ingress
or egress, replace no more than one  door  lock  to  provide  subsequent
access to the property;
(b) secure, replace or board up broken doors and windows;
(c)  secure  any part of the property that may be deemed an attractive
nuisance including, but not limited  to,  a  water  feature  that  could

create  a  drowning  risk,  refrigerator or freezer units, outbuildings,
wells or septic tanks;
(d)  take reasonable measures to ensure that pipes, ducts, conductors,
fans and blowers do not discharge harmful gases, steam, vapor, hot  air,
grease, smoke, odors or other gaseous or particulate waste directly upon
abutting  or  adjacent  public  or  private  property or that of another
tenant;
(e) where appropriate, winterize the applicable plumbing  and  heating
systems;
(f)  provide  basic  utilities  including,  but not limited to, water,
electricity, natural gas, propane and sewer service, as appropriate  and
when  allowed  by  the  local  utility provider, that are needed for the
operation of a sump pump or dehumidifier,  or  when  there  are  jointly
owned or shared utilities with adjoining properties or units, except for
turning  off  water  service  to  prevent flooding or water leaks in the
property, or when other utility service could reasonably create a hazard
to the property or an  unauthorized  occupant  or  person  entering  the
property;
(g)  remove  and  remediate  any significant health and safety issues,
including outstanding code violations;
(h) take reasonable measures to prevent the growth of harmful mold;
(i) respond to  government  inquiries  regarding  property  condition,
subject to restrictions regarding financial privacy;
(j)  ensure that the notice required to be posted in subdivision three
of this section remains posted on  an  easily  accessible  part  of  the
property  that  would  be  reasonably  visible to the borrower, property
owner or occupant so long as the duty to maintain applies; and
(k) pay homeowners' association, condominium common charges as defined
in section three hundred thirty-nine-e  of  the  real  property  law  or
cooperative fees as needed to maintain the property.
5.  At  no  time  shall  a  servicer remove personal property from the
property unless:
(a) the personal property poses a significant health and safety issue;
or
(b) there is an uncontested order to do so by a governmental entity.
6. A servicer who has determined a property to be vacant and abandoned
and who has secured the same shall take reasonable and necessary actions
to maintain the property until the earlier of the following events:
(a) an occupant of the property has  asserted  his  or  her  right  to
occupy the property, or the servicer or its agents have received threats
of violence;
(b) the borrower has filed for bankruptcy;
(c)  a  court  has ordered the servicer to stop any maintenance of the
property;
(d)  a  homeowners'  association  or  cooperative  has  prevented  the
servicer from gaining access to or maintaining the property;
(e) the property has been sold or transferred to a new owner;
(f) the servicer or investor subject to the provisions of this section
has released the lien on the property; or
(g)  the  mortgage  note  has  been  assigned,  transferred or sold to
another servicer.
7. Reasonable and necessary actions to maintain the property  include,
but are not limited to:
(a) ensuring that the property remains secure pursuant to subdivisions
four, five and six of this section; and
(b) maintaining property in a manner consistent with the standards set
forth  in  sections  301, 302 (excluding 302.2, 302.6 and 302.8), 304.1,
304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1,  and  308.1

of  the  New  York  property  maintenance  code,  to the extent that the
mortgage servicer or its agents are able to obtain necessary or required
permits or approvals.
8.  (a)  Violations  of  this  section  may  be heard before a hearing
officer or a court of competent jurisdiction. If it shall appear to  the
satisfaction  of  the  hearing  officer  or  the  court,  based  on  the
preponderance of  the  evidence,  that  the  mortgagee  or  agent  of  a
mortgagee  has  violated  this section, a civil penalty may be issued by
the hearing officer or the court in the amount of  up  to  five  hundred
dollars per day per property for each day the violation persisted.
(b)  The  superintendent of financial services may, as appropriate and
in his or her sole discretion, pursue any suspected  violation  of  this
section.  Before  taking  such action, the superintendent shall give the
lender, assignee or mortgage loan servicer at least seven  days'  notice
of the violation.
(c)  In  addition  to  the  authority  granted  to  the  department of
financial services, the municipality  in  which  such  residential  real
property  is  located,  shall  have the right to enforce the obligations
described in this section in any court of competent  jurisdiction  after
at  least  seven  days'  notice to the lender, assignee or mortgage loan
servicer, unless the property requires emergency repairs  to  address  a
threat   to  public  health,  safety  or  welfare,  in  which  case  the
municipality may enter and maintain the property to cure the  emergency,
provided  however,  notice  shall be provided to the lender, assignee or
mortgage loan servicer as soon as practicable. Any  municipality  acting
pursuant  to  this subdivision shall have a cause of action in any court
of competent jurisdiction against the lender, assignee or mortgage  loan
servicer  to  recover  costs  incurred  as  a  result of maintaining the
property. Such entity shall provide the department of financial services
with written notice at least  ten  days  prior  to  bringing  an  action
pursuant  to this subdivision; provided, however, that failure to comply
with this notice requirement shall  not  be  a  defense  to  the  entity
proceeding  pursuant to this subdivision. The authority provided by this
subdivision shall be in addition to, and shall not be deemed to diminish
or reduce, any rights of the parties described  in  this  section  under
existing  law  against  the  mortgagor  of  such property for failure to
maintain such property. Any civil penalty imposed pursuant to  paragraph
(a)  of this subdivision in an action brought by a municipality pursuant
to this paragraph shall be retained by such municipality.
(d) The department of financial services is authorized  and  empowered
to  adopt  such  rules  and  regulations  as may, in the judgment of the
superintendent of financial services, be  necessary  for  the  effective
implementation,   administration,  operation  and  enforcement  of  this
section.
9. A servicer who peacefully enters a vacant and abandoned property in
order to  maintain  pursuant  to  this  section  shall  be  immune  from
liability when such servicer is making reasonable efforts to comply with
the statute.
10.  The provisions of this section are subject to federal laws, court
orders and investor and insurer guidelines.
11. For all state or federally chartered banks, savings banks, savings
and loan  associations,  credit  unions,  or  servicers  for  which  the
provisions  of  this  section  do  not  apply,  pursuant  to the opening
paragraph of this section, any agreement between such state or federally
chartered banks, savings banks, savings and  loan  associations,  credit
unions,  or  servicers  and the department of financial services that is
associated with the maintenance  and  repair  of  vacant  and  abandoned
property   shall   remain   in   full   force  and  effect  between  the

aforementioned parties for so long as the terms and conditions  of  such
agreement remain in effect.
12.  The  department  of financial services shall issue such rules and
regulations necessary to implement the terms of this section,  including
but  not limited to rules and regulations pertaining to the reporting of
financial information that state or federally chartered  banks,  savings
banks,  savings  and loan associations, or credit unions must provide to
implement this section.
13. No local law, ordinance, or resolution  shall  impose  a  duty  to
maintain  vacant  and  abandoned property as defined in section thirteen
hundred  nine  of  this  article  in  a  manner  inconsistent  with  the
provisions  of  this section that are related to maintenance as provided
under subdivisions three, four, five, six and seven of this section,  or
establish related penalties nor other monetary obligations, with respect
to  a  state or federally chartered bank, savings bank, savings and loan
association or credit union that originates, owns, services or maintains
a mortgage related to such property.
No local law, ordinance, or resolution shall impose a duty to maintain
vacant and abandoned property upon  any  state  or  federally  chartered
bank,  savings  bank,  savings and loan association or credit union that
originates, owns, services or  maintains  a  mortgage  related  to  such
property  for  which  the  provisions  of  this section, pursuant to the
opening paragraph of this section, do not apply.