Page 12 - CooperatorNews New York June 2022

12 COOPERATORNEWS — JUNE 2022 COOPERATORNEWS.COM does, as mentioned above. However, co- operatives are not subject to the statutory owner does not respond with a payment 60-day minimum stay that condos are. In- stead, stays on co-op eviction orders are and review to confirm not only the holder usually closer to seven to 14 days—though of the first mortgage on the unit, but any depending on the circumstances, a judge other parties in interest—a bank that has might impose a longer stay. Once the stay granted the unit owner an equity line of expires, the cooperative can place the evic- tion order with the sheriff to execute it. McCracken says there are a number of scenarios that could set an eviction in tions because, unlike the limited priority motion in a co-op setting. “Nonpayment for six months over the first mortgage, the of maintenance is the most common. Ac- cording to a co-op recognition agreement, expenses has a complete priority over any in all co-op mortgages, the co-op board second mortgages. In other words, should can notify the lender in a case of monetary the unit be sold to satisfy a judgment, default and the lender will pay defaulted the junior mortgage(s) would completely co-op fees to protect their position. Evic- tion can also be used for multiple defaults under the propri- etary lease for non- monetary behaviors, such as breaking house rules or hav- ing a guest who isn’t allowed under the lease.” Under the pro- prietary lease, the corporation can terminate the lease after sending a no- tice to cure. If that doesn’t resolve the issue, then they go to court—which McCracken advises against, if it can be court. This must be done at the point when avoided. “You don’t want to be there,” he the unit owner’s account is six months in says. Landlord-tenant courts tend to favor arrears, since the filing preserves the six- tenants, and judges will often rule against month limited priority period the associa- a landlord—including a co-op board—on tion’s lien has over the first mortgage. the narrowest procedural grounds. The View from Massachusetts While the process for removing a de- faulting or chronically disruptive resident tenant is available in both co-op and con- is fairly similar from state to state, there do settings to different extents and for dif- are notable exceptions. In Massachusetts, ferent reasons. No matter what the process for example, the situation is a bit differ- ent, explains Ellen Shapiro, a partner with ings, it’s lengthy, acrimonious, and almost Marcus, Errico, Emmer, & Brooks, a law always very expensive. Therefore, booting firm based in Braintree. “If an owner does an owner or shareholder out of an HOA not pay his or her monthly assessment or building should be considered as a last fees, after the account has been in arrears resort. Boards of co-op and condominium or had an outstanding balance for 60 days, properties, their management, and legal the board can start a statutory lien enforce- ment process which can lead to the sale settle the matter with an owner or share- of the unit if the owner does not pay. Al- though that is not an eviction, if the owner proceeding with the ‘nuclear option’ of vacates, it does have the same effect. How- ever, if the owner does not vacate, then the successful bidder—the new owner—has to evict the past owner.” Shapiro goes on to outline the process for evicting a Massachusetts condomini- um owner: The first step is to send the unit owner a Statutory Notice of Delinquency. This is typically done when the unit ac- count is either 60 or 90 days in arrears, but in no event earlier than 60 days. If payment is not received and the unit plan, the board will order a title search credit, for example—who might need to be notified of the arrearage. It’s important to notify these institu- condominium’s lien for unpaid common ‘wipe out.’ Notice of the unit own- er’s delinquency is given to sec- ond mortgagees so they can de- cide what steps, if any, to take in order to protect their mortgage. If all of the above does not compel the pay- ment of the ar- rearage, either by the unit owner or their lender, the association can file a com- plaint in district court or superior While the specific terms of art may dif- fer, the option to use an eviction—or an eviction-type proceeding—to remove a is called, however, like all legal proceed- advisors should make all due efforts to holder privately and one-on-one before eviction. n A J Sidransky is a staff writer/reporter for CooperatorNews, and a published novelist. He can be reached at alan@yrinc.com. REMOVALS... continued from page 2 “Because a co- op shareholder has a tenant-landlord relationship with the board under a proprietary lease, for purposes of eviction, they’re in the same boat as a renter.” —William McCracken or condominium’s documents,” he says. win scenario.” “However, in the event this cannot solve the problem, it is difficult for the board and managing agents to resolve these dis- putes without having a third party cor- roborate the noise complaint. To do this, of community as possible. This can be in we have had success having our clients the form of a monthly newsletter that up- retain a sound engineer to come into the dates the unit owners on what is going on apartment and record the noise and see in the building. “The board can also have if it rises to the level that is prohibited by quarterly meetings with the unit owners New York City noise code laws.” Daniel Wollman, CEO of Gumley Haft, might have rather than only deal with which manages approximately 75 New this once a year at the annual meeting York City co-ops and condos, notes in all of unit owners,” he continues. “Fostering instances of conflict, the first step should this sense of community and providing be to investigate the source of the prob- lem. Make sure everything complies with where the unit owners realize they are all the rules. For serious noise complaints, in this together and noise complaints or Gumley Haft has brought in sound engi- neers to measure the decibel level of the rational and civilized manner.” noise, such as a loud air conditioner; if necessary, the unit must be replaced or ment company should try to be trans- modified to reduce the offending noise. “The best thing you can do is try to as much information as possible to keep talk to the person who is having the prob- lem and then talk to the neighbors and made and the reason for said decisions. If try to come up with a practical solution the unit owners know the reason for the for trying to resolve things,” Wollman board’s decisions, they are less likely to says. “These should be delicate discus- sions and try to mediate a solution that will work.” The third major point of contention vations that are causing noise or dust to is leaks. The damage and disruption that enter into other units, or common area they can cause a homeowner or share- holder can lead to some very serious acri- mony if not addressed civilly. Managing Conflicts Harold Coleman, Jr. is senior vice president of mediation for the Ameri- can Arbitration Association and has also pany involve the unit owners in decisions been president of three different asso- ciation boards—so he has seen his share keep them updated, or are not forth- of conflicts throughout his career. “Any coming with respect to the building’s fi- governing board or managing association nances,” Ciarlo says. “Many boards can that rules with an iron fist instead of deal- ing with issues with a ‘velvet glove’ really to hide anything, but because they do not misses the point and escalates conflict want their decisions second-guessed by that really could have been contained by everyone in the building.” being a bit more sensitive,” he says. “Communication is always the first step with any situation within the HOA clear set of rules and regulations to en- as we encounter any form of dispute,” sure that all tenants understand what’s ex- says Joe Balzamo, chief operating officer pected of them and act in a manner that’s for AR Management in Mount Arlington appropriate for their living situation. and Morristown, New Jersey. “It’s impor- tant to have all parties understand what is also vital. we are actually addressing or discussing.” Actively listening is just as—if not expectations for everyone,” says Chip more—important as talking in these dis- cussions, so all parties gain and grasp Matrix Property Management in North each other’s specific point of view on the Brunswick, New Jersey. “Make sure rules subject. “We have to ensure we have both resolve a problem and don’t make them parties understand what is or could be the overly burdensome. Remember, this is options surrounding the decisions each someone’s home and they have the right party will make,” Balzamo says. “We al- ways try to end with a solution that both parties are happy with. With all the spe- cifics being addressed, it’s always best in any negotiation or decision to have both parties feel like they have actually given up something to ensure a successful win- Communication Counts To deal with conflicts among unit owners, Ciarlo notes that the best prac- tice is to try and create as much of a sense to address any issues or questions they regular updates can create an atmosphere renovation issues can be dealt with in a In addition, the board and manage- parent and provide the unit owners with them informed of the decisions being challenge them. Another source of conflict concerns renovations. This can be in-unit reno- renovations that can have major disrup- tive effects on residents, such as façade work, hallway upgrades, or repairs to a building’s mechanical systems or utilities. “We often hear complaints that nei- ther the board nor the management com- which affect the entire building, do not be secretive, not because they are trying Play by the Rules All co-ops and condos should have a Strong communication of what’s required “Having clear, concise rules helps set Hoever, vice president of operations for to peaceful enjoyment. Also—and this is DEALING WITH... continued from page 1 continued on page 14