Case Notes by
Andrew Brucker, Armstrong Teasdale
Category
- Access
- Alterations
- Arbitration
- Assessment
- Attorney Fees
- Attorney-Client
- Authority to Sue
- Balcony/Terrace Rights
- Bike Lane
- 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
- 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
- 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
- Tax
- Third-Party Liability
- Transfers
- Trespassing
- Trial Practice
- Violations
- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: May 2023
Spirollari v. Breukelen Owners Corp. and SMRC Mgmt LLCAn issue that is very common in co-ops and condos is the use of the handymen and other staff after hours by the shareholders and unit-owners. This litigation illustrates the danger when boards allow that. If there is an injury, might the board be held responsible? If there is damage caused during the job, who might be responsible? Is the super or the board still somehow supervising the work, even though they are not in the room? These are questions that one does not want to have to answer when disaster strikes. If a board allows its employees to work for residents after hours, a policy should be put in place and a waiver of liability signed by the shareholder or unit-owner, freeing the board from any responsibility. The resident should be made aware that the co-op or condo and its management are not responsible if anything goes wrong and that the burden of risk is shifted to the resident. Insurance issues should be reviewed by the board. And consultation with counsel is essential to make sure the board does not ignore or mishandle a very serious and sensitive issue.
Read full articleFirst published: Mar 2023
Access: How Much Are You Offering?When sidewalk bridging (or other protection or scaffolding) must be installed on adjacent property, the property owners must negotiate an access agreement. But if the parties cannot agree on the terms of the agreement, the law permits the party needing access to bring a special proceeding under RPAPL §881, and the court will then decide what is reasonable. In light of the fact that no one can predict what a judge might do, it is best for both sides to be reasonable and to work hard towards an agreement that is fair to both parties. This is especially true when the value of property is easily ascertained, as was the case here, and where the monthly rent received was certainly a good indication of the value of the property per month.
Read full articleFirst published: Jan 2023
Tomfol Owners Corp. v HernandezIt should be noted that although the eviction action in this case was unsuccessful, it was rejected for technical reasons. It’s extremely important to remember that eviction is an extreme and drastic remedy, and that every step required by the lease must be followed. Even today, some 20 years after the Pullman decision, lawyers are very careful when they attempt to evict a shareholder based upon objectionable behavior. Following every step outlined in the lease, and even going beyond the requirement to establish that there was no bad faith involved in the process, is essential to winning a Pullman eviction action.
Read full articleFirst published: Nov 2022
My Leaking Doors, Your Cost To FixThis fact pattern is fairly common in cooperatives. A shareholder will undertake an alteration, and the alteration agreement with the cooperative will state that the shareholder is responsible for the repair and maintenance of the new fixtures, walls, etc., and that subsequent owners will also be responsible. But decades later, when repairs are required, there is no agreement with the new shareholder in which he assumes the obligations under the alteration agreement. To make matters worse, management may not even have a file on this matter (since management often changes over the decades). Unless the proprietary lease has precise language binding the shareholder, there is little to do. It should be noted that some cooperatives require a purchasing shareholder to sign an Assumption Agreement of the prior lease, as well as executing a brand new proprietary lease. Some Assumption Agreements include language which states that the new shareholder assumes not only the old lease, but also any other agreements between the (selling) shareholder and the cooperative. This might be enough to hold the new shareholder responsible for problems with a prior alteration, but at this time the courts have not reviewed this issue.
Read full articleFirst published: Oct 2022
Brightwater Towers Condominium v. Vitebsky, Zilberman and SosinaSo what can a board do to prevent a handful of dissidents from spreading nasty and often anonymous statements insinuating that it is acting improperly? Communication is the key, since the number one complaint of dissidents is that the board is not communicating with shareholders or unit-owners. Quarterly newsletters are one way to keep residents abreast of the operations of the building and the decisions of the board. But the best way may actually have been provided by the pandemic — virtual meetings. The sniping by a few owners most likely have very little effect if all residents hear directly from the board, and often.
Read full articleFirst published: Jun 2022
Trump Village Section 4, Inc. v VilenskyAlthough the issues of whether a co-op can sue when a prospective buyer makes misrepresentations on a purchase application have not been finally resolved — and courts will continue to hear motions in such cases — it is interesting that the trial court and then an appellate court allowed a cooperative to bring a fraud action in this case. It is not uncommon for an applicant to claim he will move in and instead install an adult child in the apartment or use it as an investment by subleasing the apartment. In the past, boards have had little recourse. Certainly the cooperative might bring an action that the shareholder has violated the lease, but after curing, the violations could continue. Still, the possibility of winning damages in a fraud claim makes it imperative to follow such disputes to their legal conclusion.
Read full articleFirst published: Jun 2022
Roberts v. WVH Housing CorporationThese disputes happen all too often at cooperative and condominium elections. It would seem that the reason for this is the rush to close the meeting and announce the results the same evening. It is not uncommon for a board to insist that the vote be finalized the night of the meeting, no matter how late it gets. This is asking for trouble, since people often make mistakes. In many cases, if there was a simple comparison of the number of shareholders who signed in (either by proxy or in person) and the number of ballots, discrepancies might be discovered. In the lumberyard, it is common to hear “measure twice, cut once.” Perhaps an adage should be created just for elections at cooperatives and condominiums: Check twice, announce once.
Read full articleFirst published: May 2022
Timing is EverythingIf you are dissatisfied with the action of the cooperative or the board, and you believe that the court should review it under Article 78, bring an action immediately, as the statute of limitation is quite short.
Read full articleFirst published: May 2022
Baker V. 16 Sutton Place Apts. Corp.If you are dissatisfied with the action of the cooperative or the board, and you believe that the court should review it under Article 78, bring an action immediately, as the statute of limitation is quite short.
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 article