Case Notes in
2022
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
- Service of Process
- 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: Apr 2022
Heavy Wind, Then a TragedyWhere a terrace or balcony is involved, the building, its unit owners and their tenants are responsible for securing its contents or bringing it indoors during inclement weather. Even heavy furniture needs this attention, so that pedestrians below are protected from potentially tragic outcomes. It’s the law, and a common law responsibility. Non-resident renters, as well as the buildings, are bound by it. As for this court decision, it was not a motion on the merits of the claim, and it does not mean that the renters will be liable for the terrible injuries suffered by the plaintiff. A jury may well determine that, if there is fault, it will be apportioned, and the greater fault may be assigned to the Unit Owner, if that is who placed the chair there.
Read full articleFirst published: Apr 2022
Heywood Condominium v. Steven WozencraftGovernance of a condominium can be difficult, as the board does not have the same remedies as in a cooperative. This being the case, every condo board should review the house rules and bylaws to ensure that it has all of the possible remedies that might be available. Careful review of the provisions in regard to the non-payment of common charges is very important, and it should be clear in the governing documents that if a unit-owner is in arrears, nonessential services, including the use of amenities (such as a gym or pool or rooftop garden), will not be available to that unit-owner. It is best to review all remedies in the governing documents, including those involving other day-to-day violations of the house rules and bylaws, such as smoking, noise and odor complaints.
Read full articleFirst published: Mar 2022
Objectionable Conduct: A ‘Pullman” Slip -UpThe so-called Pullman provision in a proprietary lease is a very useful tool when it comes to shareholders who exhibit objectionable conduct. However, in order to properly use this weapon, the co-op must strictly comply with the terms of the provision, as the courts are very aware that terminating a proprietary lease is an extreme remedy. Prior to utilizing this provision, the co-op must review every step required with management and counsel, as any defect in the procedure will result in a dismissal of the co-op’s action.
Read full articleFirst published: Mar 2022
Bad BehaviorSometimes the animosity that grows between neighbors takes on a life of its own, and if not nipped in the bud drives them to self-destructive behavior. Where the parties could not act rationally to realize their interests, the judge had to step in and be the grownup, if for no other reason, to prevent abuse of the court’s resources.
Read full articleFirst published: Feb 2022
Getting Off the BoardWHAT YOU NEED TO KNOW As is always the case, it is vital to follow the bylaws, which the Esplanade Board did in exercising its right to remove directors for cause.
Read full articleFirst published: Feb 2022
Getting on the BoardThis is a good example of the need to comply with a building’s governing documents when determining whether an election was properly held.
Read full articleFirst published: Feb 2022
Water LeakUnlike a co-op shareholder, a condo owner is not a lessee under a proprietary lease, and is not protected by the statutory warranty of habitability. Under this protection, a co-op shareholder can withhold rent if his or her apartment becomes unlivable due to damage, but a condo owner does not have that right. The condo owner can't withhold common charges, even if there is a damage claim for alleged water leaks. But note that the Judge, by holding the money judgment in abeyance, essentially gave the unit-owner a reprieve on paying common charges while the lawsuit was pending, undercutting the principle that was supposedly being exalted. It is a curious decision, one that properly states and applies the law but then, in a twist of fate worthy of M. Night Shyamalan, undoes it all in the penultimate sentence.
Read full articleFirst published: Feb 2022
Washing MachineBoards should consult their governing documents and ensure sufficient notice is given, and even add a day or two as a cushion. Courts will not dismiss a case if too much notice is given instead of not enough. Boards should also make every effort to resolve disputes with their shareholders so that harmonious and mutually beneficial relationships cay be maintained.
Read full articleFirst published: Feb 2022
Nelson V. Board Of Managers Of The 32 East 1st Street CondominiumWHAT YOU NEED TO KNOW Unlike a co-op shareholder, a condo owner is not a lessee under a proprietary lease, and is not protected by the statutory warranty of habitability. Under this protection, a co-op shareholder can withhold rent if his or her apartment becomes unlivable due to damage, but a condo owner does not have that right. The condo owner can't withhold common charges, even if there is a damage claim for alleged water leaks. But note that the Judge, by holding the money judgment in abeyance, essentially gave the unit-owner a reprieve on paying common charges while the lawsuit was pending, undercutting the principle that was supposedly being exalted. It is a curious decision, one that properly states and applies the law but then, in a twist of fate worthy of M. Night Shyamalan, undoes it all in the penultimate sentence.
Read full articleFirst published: Jan 2022
Elango Medical PLLC v. Trump Palace Condominium and Trump Corp.Though the decision of the appeals court did not address whether there was discrimination by Trump — the case is still pending — the decision here points out three very important points every co-op and condo board should be aware of. First, courts will often look at past acts of a board, and inconsistency is frowned upon. The board’s decision to allow other units to be used as medical offices could only lead a court to conclude that there must be another reason for a rejection of the current applicant. A mantra of all boards should be: “Be reasonable, and be consistent.” This golden rule will alleviate much pain — and avoid many lawsuits. The second point is a simple piece of advice for avoiding charges of discrimination: Do not ask questions (or require things of an applicant) if it would elicit information that would lead you to know that they belong to a protected class. For example, do not ask an applicant’s age, since that may result in a claim that there was a rejection because the applicant was too old or too young. Do not ask if they will need any accommodations, because this is akin to asking: “Do you have a disability?” Do not ask the applicant’s religion or where they were born. None of these questions are relevant to whether they will be a good neighbor and pay their maintenance on time, and none of these questions can be asked on an application or at an interview. Likewise, requiring a photograph is wrong because it can elicit information that is inappropriate (and illegal) when making the admittance decision. The final important point involves the Trump Corp.’s role. In asking the court to dismiss the claim, Trump took the position that it was only the agent of the condo board, and the board made the decision. The court seemed to be warning managers that if there is discrimination, they may be held culpable if they took an active role. We do not know how the court will rule in this matter. However, given the two most important factors (the photo of the applicant and the prior use of the unit), it would be safe to say that the position of the condo board and Trump seems weak. The decisions of the court so far have taught a valuable lesson to boards that are wise enough to learn from the mistakes of others.
Read full article