Case Notes
Case Notes provides insight on one particularly relevant co-op or condo case—clearly explaining what happened, why it’s important, and what lessons can be learned within.
Category
- Access
- Alterations
- Appeals
- Arbitration
- Assessment
- Attorney Fees
- Attorney-Client
- Authority to Sue
- Balcony/Terrace Rights
- Bike Lane
- Board of Directors
- Books and Records
- Breach of Lease
- Business Judgment Rule
- Bylaws
- Bylaws/House Rules
- Certificate of Occupancy
- Charges/Fees
- Commercial Unit
- Common Element
- Common Elements
- Companion Animal
- Constitutionality
- Construction Defects
- Contracts
- Conversion
- Defamation
- Discovery
- Discrimination
- Due Diligence
- Easement
- Elections
- Estate
- Eviction
- Eviction/Termination
- Fiduciary Duty
- Fines
- Foreclosure
- Fraud
- Governance
- Gym
- House Rules
- Indemnification
- Indemnification/Subrogation
- Injunction
- Insurance
- Labor Law
- Liability of Directors
- Licenses
- Liens
- Maintenance
- Malpractice
- Management
- Mechanic's Lien
- Misrepresentations
- Motion Practice
- Motion Practive
- Negligence
- Notice of Pendency
- Nuisance
- Occupancy Agreement
- Ownership
- Parking
- Partnership
- Personal Injury
- Pets
- Property Damage
- Proprietary Lease
- Reasonableness
- Receivership
- Release
- Repairs
- Representations
- Sales
- Sponsor
- Statute of Limitations
- Stock/Shares
- Stocks/Shares
- Sublets
- Succession Rights
- Tax
- Third-Party Liability
- Transfers
- Trespassing
- Trial Practice
- Violations
- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: Jun 2007
Estate of Angela SchillerIf the amounts sought in this case were not disputed, or at the least easily calculable under some specific provision of the co-op’s bylaws or proprietary lease which give the co-op the right to impose a specific item, for example, a late fee, a sublet fee, or a transfer fee, the court would have upheld such payment as a precondition to the transfer. However, in this case, where the amounts were unliquidated, speculative, and disputed, the court refused to give the co-op an advantage by requiring the requested payment. This will require further legal action. The issue might be changed in the future by a proprietary lease amendment giving the board specific authority to charge amounts in certain disputes with shareholders.
Read full articleFirst published: Apr 2007
Lisenenkov v. KaszirerThis is another example of a board seeking to exceed its authority. Here, a condominium board was trying to impose requirements on a prospective apartment purchaser because it was uncertain about the ability of such purchaser to pay his shares of the common charges for the building. The only problem was that the board’s solution – an advance payout of two years of common charges – was beyond the board’s powers. So, when challenged, the court determined that the requirement was invalid and this condo board was forced to realize that it was not a co-op board, which usually has the power to require a purchaser to provide a security deposit.
Read full articleFirst published: Mar 2007
Poyck v. BryantThis is a case of first impression and may signal the first of many cases that could lead to severe restraints on the ability of co-op owners to smoke in their apartments, especially when neighbors complain of tobacco odors. While secondhand tobacco odors have long been viewed as a nuisance, they are now being treated as a health hazard that may be regulated. Boards must be vigilant to this hazard and act to remedy what may now be viewed as a breach of the warranty of habitability. That switch carries real consequences for a board.
Read full articleFirst published: Jan 2007
Colin Fraser v. 301-52 Township Corp.This decision is helpful for owners of residential property in New York, including cooperative and condominium boards. It firmly establishes the view that mold concerns in apartment buildings – the latest environmental issue of the past 30 years – are unlikely to have the same impact as have such prior environmental issues as asbestos and lead-based paint. Mold is not as serious a health hazard as has been suggested elsewhere. Of course, the presence of mold in water-damaged environments still must be remediated expeditiously to mitigate property-damage claims. Nonetheless, until there is an appellate decision on personal injury from mold, it would be wise to view this decision cautiously. It is not the last word.
Read full articleFirst published: Dec 2006
Blumberg vs. AlbicoccoThis case is consistent with a number of prior co-op and condo decisions holding that a board’s power to fine a cooperative or condominium unit-owner for not paying or other objectionable conduct must be expressed in the governing documents of the entity – usually the proprietary lease or bylaws –- and will not be implied by the court. The solution is to amend the governing documents by the requisite vote of unit-owners to give a board the power to fine in specific instances.
Read full articleFirst published: Nov 2006
Forest Hills Realty Inc. v. Austin Sheppard Realty Inc.Despite the number of prior cases cited by the court, this case appears to be one of first impression involving the brokerage of co-op apartments. The decision is surprising because it is clearly anti-competitive and at variance with current practice in New York to encourage competition among real estate brokers to secure the best prices. Perhaps the broker sought relief on the wrong theory. Would the result be the same if a co-op shareholder brought an action against the board for restraining trade by allowing only one broker for the building? Doubtful.
Read full articleFirst published: Nov 2006
Silverman v. 875 Tenant Corp.This was initially an action brought by a shareholder against the co-op that was unsuccessful. As a result of the shareholder’s failure, the co-op sought to have the shareholder reimburse the co-op for its legal expenses as provided in the proprietary lease. The co-op succeeded and the case should be a warning to a shareholder who sues his or her co-op that, if the shareholder does not prevail, there is a good chance that he or she may end up paying the legal fees both for the shareholder and the co-op. Such fees may be quite substantial.
Read full articleFirst published: Jul 2006
1050 Tenants Corp. v. LapidusThe objectionable and undesirable characteristics of Lapidus appear self-evident. His dispute with the co-op has become a cause celebre in the co-op legal community. Here, the co-op properly followed the Court of Appeals-mandated requirements under both the seminal Levandusky case and its Pullman progeny, leaving the court little choice but to approve the co-op’s termination of the Lapidus tenancy for objectionable conduct. Increasingly, Pullman should be seen as a real wake-up call for any co-op shareholder who acts in an outrageous anti-social manner.
Read full articleFirst published: Jun 2006
Strax vs Murray Hill Mews Owners Corp.Under New York law, attorneys admitted to practice are entitled to brokerage fees for acting as a broker in real estate transactions without specifically holding themselves out as a broker. Here, the attorney-board member may not have been recognized initially as seeking a commission, especially when that person served on the board without compensation. The confusion of the two roles could have been avoided if the board member had asserted from the beginning her intention to seek a commission for services that other board members could otherwise reasonably have assumed were being provided without an expectation of compensation.
Read full articleFirst published: Jun 2006
Matter of Schwarz vs. Dorchester Apt. Corp.This is another case in the long line of decisions sustaining board action under the Business Judgment Rule when challenged by a shareholder. New York law is very clear that courts will grant broad deference to action by a co-op or condo board where the board acts within the guidelines of Levandusky and Pullman. Courts in New York do not usually second-guess board actions. However, the court here stopped short of awarding legal fees in favor of the co-op.
Read full article