If you closed on a New York City property and later found an open Department of Buildings (DOB) violation or an OATH/ECB summons on the record, your owner’s title policy almost certainly does not cover the cost of fixing it. Building violations are reported in NYC title work for information, not insured, and the standard owner’s policy excludes building and zoning matters. Your claim against the seller is also limited, because most contract obligations end when the deed is delivered.
What you can do is clear the violation yourself, and DOB has a defined process for a new owner to do that. This guide covers the five boroughs. Westchester handles violations through each municipality; see open permits and COs at a Westchester closing.
Why the title policy usually does not respond
Two separate things happened at your closing: a title search, which included a set of municipal (“departmental”) searches, and a title insurance policy. They do different jobs.
The violation search was information only. In NYC, the DOB, ECB, certificate of occupancy (CO) and similar searches are returned with the title report but are not part of what is insured. Stewart Title’s New York agent guidelines state that municipal searches other than the required tax, water and bankruptcy-type searches “are for information only and are not insured,” and require a cover page saying the company “assumes no liability for the accuracy thereof” (Stewart NY Guidelines, 2022, sections I.C.2 and XIII.A). That is one underwriter’s guidance, not law, but it reflects how NYC title reports are generally prepared. If the violation appeared in that search, it was disclosed to you. If it was missed, the search result was not an insured statement.
The policy excludes building regulation. The 2021 ALTA owner’s policy form excludes loss from any law or regulation “including those relating to building and zoning” that regulates the use of the land or the character of improvements (2021 ALTA Owner’s Policy, Exclusion 1.a). Covered Risk 5 gives back coverage only for a violation described in an “Enforcement Notice,” which the policy defines as a document recorded in the Public Records. The policy’s definition of Public Records excludes permitting, building and public safety filing systems. A DOB violation sits in DOB’s Buildings Information System (BIS) or DOB NOW, not in the land records, so it is not an Enforcement Notice. These quotations are from the ALTA 2021 form; New York policies are issued on forms filed through the Title Insurance Rate Service Association (TIRSA), so check the jacket of your own policy.
Money items are a different analysis. A violation is not a lien. But some DOB-related amounts can become liens: certain ECB judgments convert to tax liens on the property under NYC Administrative Code § 28-204.6 (Local Law 153 of 2017), and those appear on the Department of Finance (DOF) property account. The policy’s Covered Risk 2.b addresses the lien of real estate taxes or assessments “due or payable, but unpaid” at the date of policy. Whether a converted charge on your account falls within that coverage depends on its timing, how it was billed, and the exceptions in your Schedule B. If you find a lien-type charge that predates your closing, give the title company prompt written notice; the policy reduces its liability to the extent a late notice prejudices it (Condition 3). How these charges follow the property is covered in ECB and HPD charges and the new owner.
| What you found | Lien? | Covered by owner’s policy? |
|---|---|---|
| Open DOB violation | No | Generally no (Excl. 1.a) |
| Open OATH/ECB summons | No | Generally no |
| ECB judgment vs. seller | If docketed pre-closing | Notify title |
| Converted ECB tax lien | Yes | Depends; notify title |
| Missing or wrong CO | No | Generally no |
Can you go back to the seller?
Usually only if your contract says so.
Merger. Under New York’s merger doctrine, “provisions in a contract for the sale of real estate merge into the deed and are thereby extinguished absent the parties’ demonstrated intent that a provision shall survive transfer of title” (Arnold v Wilkins, 61 AD3d 1236 (3d Dept 2009)). The Second Department applied the same rule to dismiss a buyer’s post-closing contract claim in Simone v Homecheck Real Estate Servs., 42 AD3d 518 (2d Dept 2007).
The standard contract does not help much. The widely used NYSBA/NYC Bar Residential Contract of Sale requires the seller to comply with violations “noted or issued as of the date hereof” and convey free of them (¶10(a)), but ¶11(c) says none of the seller’s covenants, representations or obligations survive closing unless the contract expressly says so, and ¶10 has no survival language (form copy via Justia). Paragraph 10(a) also reaches only violations existing at contract signing. Riders vary, so read yours: some add a representation that there are no open violations or permits and state that it survives closing for a set period. That survival clause is what keeps a post-closing claim alive.
Fraud is a narrow exception. New York follows caveat emptor. A seller’s silence is not fraud, but active concealment or a false statement can be, including a false answer on a property condition disclosure statement (Simone). The statutory disclosure form under Real Property Law § 462 asks about certificates of occupancy (question 9) but not directly about violations or open permits, and it does not apply to co-ops or condos.
Escrows and holdbacks. If money was held back at closing for a violation or permit, its release terms are in the escrow agreement. Check that agreement first.
How to clear the violation now
DOB keeps a violation open on the property record until it is resolved, regardless of who owns the building. A new owner can resolve it.
1. Identify what is open. Pull the property in BIS for DOB and ECB violations, and in DOB NOW for newer records. Search the address in the OATH Summons Finder for hearing results and amounts owed. Note whether each item is a DOB violation (no hearing) or an OATH summons (heard at OATH). Step-by-step lookups are in how to check a NYC property for violations.
2. Fix the condition. Many violations, especially work without a permit, need a permit filed and signed off, or the work removed. Older unclosed jobs are covered in open permits on a NYC sale, and CO mismatches in no certificate of occupancy in NYC.
3. For a DOB violation without a summons, correct the condition, provide proof to the issuing DOB unit, and pay any applicable DOB civil penalty (DOB Violations).
4. For an OATH/ECB summons, file a Certificate of Correction (COC) in DOB NOW: Safety, under Violations & Notices of Deficiency (DOB, OATH Summonses; DOB, Certificate of Correction). A new owner who is not the respondent named on the summons must attach a copy of the deed showing the transfer (DOB, Tips & Additional Information). The submission takes proof of correction such as permits, a job sign-off or photos, depending on the violation (COC user guide). DOB will not approve a COC until all DOB civil penalties are paid or waived; work-without-a-permit penalties are assessed and paid in person at the DOB borough office that issued the summons (COC FAQs).
5. Do not stop at payment. Paying an OATH penalty does not close the violation. It stays “Open” in BIS until DOB accepts proof of correction, and shows “Resolved” after the COC is approved (DOB, Tips & Additional Information).
Who owes the old penalty. An OATH penalty is imposed on the respondent named in the summons. If that was the prior owner, the resulting judgment is the prior owner’s personal debt, not yours. Two exceptions bring it back to the title company: a judgment converted into a tax lien on the property under § 28-204.6, and a judgment docketed against the seller before your deed was delivered, which title practice treats as a judgment lien on the seller’s property and which should have been raised and paid at closing (see NYC property violations at closing and ECB and HPD charges and the new owner). If either turns up, notify the title company in writing. The violation itself, and the work to correct it, are yours to deal with as the current owner.
Co-ops, condos and resale
In a co-op, building-wide violations belong to the corporation. Open items from a prior owner’s apartment renovation are usually handled under the alteration agreement, and the board may require the current shareholder to close them out. Whatever the property type, the violation will appear on your own buyer’s departmental search, so clearing it now is usually easier than under a contract deadline. Keep the approval letters.
Official sources
- NYC DOB, DOB Violations: https://www.nyc.gov/site/buildings/safety/dob-violations.page
- NYC DOB, OATH Summonses: https://www.nyc.gov/site/buildings/safety/oath-summonses.page
- NYC DOB, Certificate of Correction: https://www.nyc.gov/site/buildings/property-or-business-owner/certificate-of-correction.page
- NYC DOB, Certificate of Correction FAQs: https://www.nyc.gov/site/buildings/property-or-business-owner/certificate-of-correction-frequently-asked-questions.page
- NYC DOB, Tips & Additional Information: https://www.nyc.gov/site/buildings/property-or-business-owner/tips-additional-information.page
- NYC DOB, Certificate of Correction Request User Guide: https://www.nyc.gov/assets/buildings/pdf/cofc_user_guide.pdf
- NYC OATH, Case Status / Summons Finder: https://www.nyc.gov/site/oath/help-center/case-status.page
- NY Real Property Law § 462: https://www.nysenate.gov/legislation/laws/RPP/462
- Arnold v Wilkins, 61 AD3d 1236 (3d Dept 2009): https://www.nycourts.gov/Reporter/3dseries/2009/2009_03074.htm
- Simone v Homecheck Real Estate Servs., Inc., 42 AD3d 518 (2d Dept 2007): https://nycourts.gov/Reporter/3dseries/2007/2007_06224.htm
- NYSBA / NYC Bar, Residential Contract of Sale (2000), form copy: https://forms.justia.com/new-york/statewide/real-estate/title/residential-contract-of-sale-2000-long-form-42326.html
- American Land Title Association, 2021 ALTA Owner’s Policy (form copy filed with the Florida OIR): https://floir.gov/docs-sf/property-casualty-libraries/title-insurance-2021-forms/2021-alta-owners-policy.pdf
- Stewart Title, New York Guidelines for Out-of-State and New Agents (underwriter guidance, December 2022): https://www.stewart.com/content/dam/stewart/Microsites/new-york/pdfs/ny-guidelines-for-out-of-state-and-new-agents-12-13-2022.pdf