‘Death Of Lessee’ Provision Pitfalls

TAKEAWAY The central legal issue here is over the meaning of a lease provision known as the “Death of Lessee” provision. The Death of Lessee provision in this proprietary lease is a typical variant that provides that if a shareholder dies, “consent shall not be unreasonably withheld to an assignment of the lease and shares to a financially responsible member of the Lessee’s family.” There are several potential interpretative pitfalls in this provision, two of which are at issue in this case. First, what is the meaning of the phrase “member of the Lessee’s family”? Does a niece qualify? Complicating matters is that, while “family member” is not defined here, a different provision of this co-op’s proprietary lease limited use of the apartment to shareholders and their “children, grandchildren, parents, grandparents, brothers and sisters.” Does the fact that this other provision does not include nieces mean that “member of Lessee’s family” should also be read to not include nieces? Or does the fact that the Death of Lessee provision not specifically list immediate family members imply an intent to read “family member” more broadly? Second, the parties disagreed over what it means for the co-op to “not unreasonably withhold” consent. According to the co-op, this means nothing more than it could not act unreasonably in denying consent. In this case, the co-op contended that Stauber had engaged in a “pattern of disruptive behavior” and showed “an utter lack of judgment and inability to get along with others,” which provided a basis for rejecting her application. According to Stauber, however, the reasonableness standard must be confined to the elements specifically identified in the text of the provision – whether she is “financially responsible” and whether she is a “member of the Lessee’s family.” Thus, in Stauber’s view, the alleged behavior identified by the co-op is legally irrelevant because it has nothing to do with whether she is a financially responsible member of Cohen’s family. By denying summary judgment in favor of additional discovery, the court deferred resolving these ambiguities. For co-op boards looking to avoid these problems in the first place, the lesson here may be to consider amending your “Death of Lessee” provision to resolve these two potential sources of conflict.