[HISTORY: Adopted by the Town Board of the Town of Penfield 1-2-2019 by Res. No. 19T-057. Amendments noted where applicable.]
This chapter shall hereinafter be known and cited as the "Registration
of Defaulted Mortgage and Vacant Property" ordinance of the Town of
Penfield.
[Amended 2-15-2023 by L.L. No. 3-2023]
It is the purpose and intent of this chapter is to establish
a process to address the deterioration, crime, and decline in value
of Town of Penfield neighborhoods caused by properties with defaulted
mortgages and properties that are vacant within the Town. The regulations
in this chapter are intended to identify, regulate, limit and reduce
the number of these properties located within the Town. It has been
determined that owner-occupied structures are generally better maintained
when compared to vacant structures, even with a diligent off-site
property owner. Vacant structures and/or structures with defaulted
mortgages where notice of pendency has been filed are often not properly
or diligently maintained, which contributes to blight and declined
property values and has a negative impact on social perception of
the residential areas where they are located. It is the Town's further
intent to establish a registration program as a mechanism to help
protect neighborhoods from becoming blighted through the lack of adequate
maintenance of properties that are vacant/abandoned or are in default
or defaulted.
The following words, terms, and phrases, when used in this chapter,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning.
Once a year from the date of the first action that requires
registration, as determined by the Town, or its designee, and every
subsequent year. The date of the initial registration may be different
than the date of the first action that required registration.
[Amended 2-15-2023 by L.L. No. 3-2023]
The mortgagor has not complied with the terms of the mortgage
on the property, or the promissory note, or other evidence of the
debt, referred to in the mortgage.
Any law enforcement officer, building official, zoning inspector,
code compliance officer, fire inspector, building inspector, or other
person authorized by the Town of Penfield to enforce the applicable
code(s).
Any condition that on its own, or combined with other conditions
present, would lead a reasonable person to believe that the property
is vacant. Such conditions may include, but are not limited to: overgrown
and/or dead vegetation; past due utility notices and/or disconnected
utilities; accumulation of trash, junk or debris; abandoned vehicles,
auto parts and/or materials; the absence of furnishings and/or personal
items consistent with habitation or occupancy; the presence of an
unsanitary, stagnant swimming pool; the accumulation of newspapers,
circulars, flyers and/or mail; statements by neighbors, passers-by,
delivery agents or government agents; and/or the presence of boards
over doors, windows or other openings in violation of applicable code.
The legal process by which a mortgagee, or other lien holder,
terminates or attempts to terminate a property owner's equitable right
of redemption to obtain legal and equitable title to the real property
pledged as security for a debt or the real property subject to the
lien. The legal process is not concluded until the property obtained
by the mortgagee, lien holder, or their designee, by certificate of
title, or any other means, is sold to a nonrelated bona fide purchaser
in an arm's length transaction to satisfy the debt or lien.
The creditor, including, but not limited to, trustees; mortgage
servicing companies; lenders in a mortgage agreement; any agent, servant,
or employee of the creditor; any successor in interest; or any assignee
of the creditor's rights, interests or obligations under the mortgage
agreement; or any other person or entity with the legal right to foreclose
on the real property, excluding governmental entities.
A filing, permitted under Article 65 of the Civil Practice
Law and Rules, that gives public notice of a pending New York State
or federal lawsuit in which the parties dispute ownership, possession,
enjoyment, or use of a particular piece of real estate.
[Added 2-15-2023 by L.L. No. 3-2023]
Every person, entity, or mortgagee, who alone or severally
with others, has legal or equitable title to any real property as
defined by this chapter; has legal care, charge, or control of any
such property; is in possession or control of any such property; and/or
is vested with possession or control of any such property. The property
manager shall not be considered the owner.
Any party designated by the owner as responsible for inspecting,
maintaining and securing the property as required in this chapter.
Any residential or commercial land and/or buildings, leasehold
improvements and anything affixed to the land, or portion thereof
identified by a property parcel identification number, located in
the Town limits.
[Amended 2-15-2023 by L.L. No. 3-2023]
Any real property located in the Town, whether vacant or occupied,
that is encumbered by a mortgage in default with notice of pendency
filed with the Monroe County Clerk's office because it is subject
to an ongoing foreclosure action by the mortgagee or trustee, has
been the subject of a foreclosure action by a mortgagee or trustee
and a judgement has been entered, or has been the subject of a foreclosure
sale where the title was transferred to the beneficiary of a mortgage
involved in the foreclosure and any properties transferred under a
deed in lieu of foreclosure/sale. The designation of a "default/foreclosure"
property as "registrable" shall remain in place until such time as
the property is sold to a nonrelated bona fide purchaser in an arm's-length
transaction or the foreclosure action has been dismissed and any default
on the mortgage has been cured; or
Any property that is vacant for more than 30 days or any cancellation
of utility or service required for legal occupancy under the NYS Uniform
Code, whichever occurs first.
A web-based electronic database of searchable real property
records, used by the Town to allow mortgagees and owners the opportunity
to register properties and pay applicable fees as required in this
chapter.
Any utility and/or service that is essential for a building
to be habitable and/or perform a service necessary to comply with
all Town codes. This includes, but is not limited to, electrical,
gas, water, sewer, lawn maintenance, pool maintenance, and snow removal.
Any parcel of land in the Town that contains any building
or structure that is not lawfully occupied.
[Amended 2-15-2023 by L.L. No. 3-2023]
This chapter applies to properties that are in default in the
Town of Penfield that are also subject to a notice of pendency. This
chapter also applies to vacant properties in the Town of Penfield.
The Town of Penfield, or its designee, shall establish a registry
cataloging each registrable property within the Town, containing the
information required by this chapter.
[Amended 2-15-2023 by L.L. No. 3-2023]
A.
Any mortgagee who holds a mortgage on real property located within
the Town that is subject to a notice of pendency shall perform an
inspection of the property upon the filing of the notice of pendency.
B.
Property inspected pursuant to Subsection A above that remains subject to a notice of pendency shall be inspected every 30 days by the mortgagee or other person responsible for the property. If an inspection shows a change in the property's occupancy status, the mortgagee shall, within 10 days of that inspection, update the occupancy status of the property registration.
C.
Within 10 days of the date when a notice of pendency is filed, the
mortgagee on whose behalf the notice of pendency was filed shall register
the real property with the Town Registry, and, at the time of registration,
indicate whether the property is vacant. If vacant, the mortgage shall
designate in writing a property manager to inspect, maintain and secure
the real property subject to notice of pendency. A separate registration
is required for each registrable property.
D.
Initial registration pursuant to this section shall contain at a
minimum the name of the mortgagee, the mailing address of the mortgagee,
email address, telephone number and name of the property manager and
said person's address, email address, and telephone number.
E.
At the time of initial registration, each registrant shall pay a
nonrefundable annual registration fee, as set forth in the Town's
fee schedule, for each registrable property. Said fees shall be used
to offset the costs of: 1) registration and registration enforcement;
2) code enforcement and mitigation related to defaulted properties;
and 3) for any related purposes as may be adopted in the policy set
forth in this chapter. Said fees shall be deposited to an account
within the Town's Finance Department dedicated to the cost of implementation
and enforcement of this ordinance, and fulfilling the purpose and
intent of this chapter.
F.
If the defaulted mortgage and/or servicing on a property is sold
or transferred, the new mortgagee is subject to all the terms of this
chapter. Within 10 days of the transfer, the new mortgagee shall register
the property or update the existing registration. The previous mortgagee(s)
will not be released from the responsibility of paying all previous
unpaid fees, fines, and penalties accrued during that mortgagee's
involvement with the defaulted property.
G.
If the mortgagee sells or transfers the defaulted property in a non-arm's
length transaction to a related entity or person, the transferee is
subject to all the terms of this chapter. Within 10 days of the transfer,
the transferee shall register the property or update the existing
registration. Any and all previous unpaid fees, fines, and penalties,
regardless of who the mortgagee was at the time registration was required,
including but not limited to unregistered periods during the foreclosure
process, are the responsibility of the transferee and are due and
payable with the updated registration. The previous mortgagee will
not be released from the responsibility of paying all previous unpaid
fees, fines, and penalties accrued during that mortgagee's involvement
with the defaulted property.
H.
Properties subject to this section shall remain subject to the semiannual
registration requirement, and the inspection, security, and maintenance
standards of this section as long as the property remains defaulted.
I.
Failure of the mortgagee and/or property owner of record to properly
register or to modify the registration to reflect a change of circumstances
as required by this chapter is a violation of this chapter and shall
be subject to enforcement by any of the enforcement means available
to the Town.
J.
If any property is in violation of this chapter the Town may take
the necessary action to ensure compliance with and/or place a lien
on the property for the cost of the outstanding obligation and any
additional cost incurred to bring the property into compliance.
[Amended 2-15-2023 by L.L. No. 3-2023]
A.
Any owner of vacant property located within the Town shall within
10 days after the property becomes vacant, or within 10 days after
assuming ownership of the property, whichever is later, register the
real property with the Town Registry.
B.
Initial registration pursuant to this section shall contain at a
minimum the name of the owner, the mailing address of the owner, e-mail
address, and telephone number of the owner, and if applicable, the
name and telephone number of the property manager and said person's
address, e-mail address, and telephone number.
C.
At the time of initial registration, each registrant shall pay a
nonrefundable annual registration fee, as set forth in the Town's
fee schedule, for each vacant property. Subsequent annual registrations
of vacant properties and payment of fees are due within 10 days of
the expiration of the previous registration. Said fees shall be used
to offset the costs of: 1) registration and registration enforcement;
2) code enforcement and mitigation related to vacant properties; and
3) for any related purposes as may be adopted in the policy set forth
in this chapter. Said fees shall be deposited to an account within
the Town's Finance Department dedicated to the cost of implementation
and enforcement of this chapter, and fulfilling the purpose and intent
of this chapter.
D.
Each individual property on the registry that has been registered
for 12 months or more prior to the effective date shall have 30 days
to renew the registration and pay the annual registration fee.
E.
If the property is sold or transferred, the new owner is subject
to all the terms of this chapter. Within 10 days of the transfer,
the new owner shall register the vacant property or update the existing
registration. The previous owner(s) will not be released from the
responsibility of paying all previous unpaid fees, fines, and penalties
accrued during that owner's involvement with the vacant property.
F.
Properties subject to this section shall remain subject to the semiannual
registration requirement, and the inspection, security, and maintenance
standards of this section as long as the property is vacant.
G.
Failure of the owner to properly register or to modify the registration
to reflect a change of circumstances as required by this ordinance
is a violation of this chapter and shall be subject to enforcement
by any of the enforcement means available to the Town.
H.
Properties registered as a result of this section are not required
to be registered again pursuant to the defaulted mortgage property
section.
A.
Properties subject to this chapter shall be kept free of weeds, overgrown
brush, dead vegetation, trash, junk, debris, building materials, any
accumulation of newspaper circulars, flyers, notices, except those
required by federal, state or local law, discarded personal items
including, but not limited to, furniture, clothing, large and small
appliances, printed material, or any other items that give the appearance
that the property is abandoned.
B.
Registrable property shall be maintained free of graffiti or similar
markings by removal or painting over with an exterior grade paint
that matches the color of the exterior structure.
C.
Front, side, and rear yards, including landscaping, of registrable
property shall be maintained in accordance with the applicable code(s)
at the time registration is required.
D.
Registrable yard maintenance shall include, but not be limited to,
grass, ground covers, bushes, shrubs, hedges or similar plantings,
decorative rock or bark or artificial turf/sod. Acceptable maintenance
of yards and/or landscape shall not include weeds, gravel, broken
concrete, asphalt or similar material.
E.
Maintenance shall include, but not be limited to, watering, irrigation,
cutting and mowing of required ground cover or landscape and removal
of all trimmings.
F.
Pools and spas of shall be maintained so the water remains free and
clear of pollutants and debris and shall comply with the regulations
set forth in the applicable code(s).
G.
Failure of the mortgagee, owner, and transferees to properly maintain
the property as required by this chapter may result in a violation
of the applicable code(s) and issuance of a citation or notice of
violation in accordance with the applicable code of the Town of Penfield.
Pursuant to a finding and determination by the Town of Penfield, by
an enforcement officer, Town Board, or a court of competent jurisdiction,
the Town may take the necessary action to ensure compliance with this
section.
H.
In addition to the above, the property is required to be maintained
in accordance with the applicable code(s) of the Town.
A.
Properties subject to these sections shall be maintained in a secure
manner so as not to be accessible to unauthorized persons.
B.
A "secure manner" shall include, but not be limited to, the closure
and locking of windows, doors, gates and other openings of such size
that may allow a child to access the interior of the property or structure.
Broken windows, doors, gates, and other openings of such size that
may allow a child to access the interior of the property or structure
must be repaired. Broken windows shall be secured by re-glazing of
the window.
C.
If a property is registrable, and the property has become vacant
or blighted, a property manager shall be designated by the mortgagee
and/or owner to perform the work necessary to bring the property into
compliance with the applicable code(s), and the property manager must
perform regular inspections to verify compliance with the requirements
of this chapter, and any other applicable laws.
D.
In addition to the above, the property is required to be secured
in accordance with the applicable code(s) of the Town of Penfield.
E.
When a property subject to this chapter becomes vacant, it shall
be posted with the name and twenty-four-hour contact telephone number
of the property manager. The property manager shall be available to
be contacted by the Town Monday through Friday between 9:00 a.m. and
5:00 p.m., legal holidays excepted. The sign shall be placed in a
window facing the street and shall be visible from the street. The
posting shall be no less than 18 inches by 24 inches and shall be
of a font that is legible from a distance of 45 feet. The posting
shall contain the following language with supporting information:
THIS PROPERTY IS MANAGED BY .
THE PROPERTY MANAGER'S ADDRESS .
AND IS INSPECTED ON A REGULAR BASIS .
THE PROPERTY MANAGER CAN BE CONTACTED:
BY TELEPHONE AT .
OR BY EMAIL AT .
F.
The posting required in Subsection E above shall be placed on the interior of a window facing the street to the front of the property so that it is visible from the street, or secured to the exterior of the building/structure facing the street to the front of the property so that it is visible from the street, or if no such area exists, on a stake of sufficient size to support the posting in a location that is at all times visible from the street to the front of the property but not readily accessible to vandals. Exterior posting shall be constructed of and printed with weather-resistant materials.
G.
Failure of the mortgagee and/or property owner of record to properly
inspect and secure a property subject to this chapter, and post and
maintain the signage noted in this section, is a violation and shall
be subject to enforcement by any of the enforcement means available
to the Town. The Town may take the necessary action to ensure compliance
with this section, and recover costs and expenses in support thereof.
The provisions of this chapter are cumulative with and in addition
to other available remedies. Nothing contained in this chapter shall
prohibit the Town from collecting on fees, fines, and penalties in
any lawful manner; or enforcing its codes by any other means, including,
but not limited to, injunction, abatement, or as otherwise provided
by law or ordinance.
All registrable property is at risk of being a public nuisance
and if vacant or blighted can constitute a public nuisance, the abatement
of which pursuant to the police power is hereby declared to be necessary
for the health, welfare, and safety of the residents of the Town of
Penfield.
A.
If the enforcement officer has reason to believe that a property
subject to the provisions of this chapter is posing a serious threat
to the public health, safety, and welfare, the enforcement officer
may temporarily secure the property at the expense of the mortgagee
or owner, and may bring the violations before the Town Board or a
court of competent jurisdiction as soon as possible to address the
conditions of the property. Nothing herein shall limit the Town from
abating any nuisance or unsafe condition by any other legal means
available to it.
B.
The enforcement officer, Town Board or a court of competent jurisdiction
shall have the authority to require the mortgagee or owner affected
by this section, to implement additional maintenance and/or security
measures including, but not limited to, securing any and all doors,
windows or other openings, employment of an on-site security guard
or other measures as may be reasonably required to help prevent further
decline of the property.
C.
If there is a finding that the condition of the property is posing
a serious threat to the public health, safety, and welfare, then the
enforcement officer, Town Board or a court of competent jurisdiction
may direct the Town of Penfield to abate the violations and charge
the mortgagee or owner with the cost of the abatement.
D.
If the mortgagee or owner does not reimburse the Town of Penfield
for the cost of temporarily securing the property, or of any abatement
directed by the enforcement officer, Town Board or a court of competent
jurisdiction, within 30 days of the Town sending the mortgagee or
owner the invoice then the Town may lien the property with such cost,
along with an administrative fee as determined in the Town of Penfield
to recover the administrative personnel services. In addition to filing
a lien the Town may pursue financial penalties against the mortgagee
or owner as prescribed by law.
E.
The Town may contract with an entity to implement this chapter, and,
if so, any reference to the enforcement officer herein shall include
the entity the Town of Penfield contracts with for that purpose.
Whoever opposes, obstructs or resists any enforcement officer,
the Town Board, or any person authorized by the Town of Penfield in
the discharge of duties as provided in this chapter shall be punishable
as provided in the applicable code(s) or by a court of competent jurisdiction.
Any enforcement officer or any person authorized by the Town
to enforce the sections here within shall be immune from prosecution,
civil or criminal, for reasonable, good faith entry upon real property
while in the discharge of duties imposed by this chapter.
Unless otherwise provided for in this chapter, a violation of
this chapter is declared unlawful.
A.
This chapter shall be administered and enforced by the Town Board
and/or the enforcement officer by taking any and all actions prescribed
for corrections of violations and for noncompliance of the provisions
of this chapter or any other applicable requirements of law. Such
actions shall include, but not be limited to, issuing appearance tickets
to designated person(s) to appear in a local criminal court in connection
with the alleged violation of this chapter or any order made thereunder
pursuant to the New York State Criminal Procedure Law.
B.
Penalties for offenses. Any person who fails to comply with any provision
of this chapter or fails to comply with any notice, order or directive
of the Town of Penfield after expiration of the time for compliance
set forth in any such notice, order or directive of the Town shall,
upon conviction be punished by a fine of not more than $1,000 or by
imprisonment not to exceed 15 days, or both, for such violation. In
the event of any failure to so comply, each and every day that such
violation continues shall constitute a separate offense, and the penalties
prescribed above shall be applicable to each such separate offense.
C.
Penalties for offenses under § 260-9, "Maintenance secured upon commencement of foreclosure proceeding." Any person, business, organization, bank or lender who fails to comply with § 260-9 shall, upon conviction, be punished by a fine of not more than $5,000 or by imprisonment not to exceed 15 days, or both, for such violation. In the event of any failure to so comply, each and every day that such violation continues shall constitute a separate offense, and the penalties prescribed above shall be applicable to each such separate offense.[1]
[1]
Editor's Note: Original § 260-17, Amendments, which
immediately followed this section, was repealed 2-15-2023 by L.L. No. 3-2023.
