Access Denied

It was a crisis waiting to happen. The White Plains cooperative had a shareholder with a constantly leaking radiator. Letters and warnings from the board and its attorney did not remedy the situation, until one day the radiator burst and rusty water dripped down the walls into the unit below.

The board called the owner at work saying they needed to get in to fix the radiator. "You do and I'll sue," he answered. "You have no right to enter my apartment without me there."

That's not an isolated case, either. There was the Long Island co-op unit owned by a drug-user and a cigarette- smoker. The owner had another habit, as well: he would leave on the gas stove (it got so bad that the other residents on the floor could smell it).

"You weren't just talking about them injuring themselves there, you were talking about possibly blowing the building sky-high," notes Walter Goldsmith, a partner with Friedman Krauss & Zlotolow, who handled the property.

Both of these cases illustrate the importance of getting access and the difficulty in getting it, even in an emergency. Not that it should be hard. After all, a board's right to obtain access to an apartment is spelled out clearly in the proprietary lease. Here's what you need to know about access.

Both of the cited examples are of emergency situations, times when the superintendent, manager, or board member needed to get into the apartment immediately. In both instances, the board did ultimately gain access, fixing the radiator in the first case and removing the gas stove in the second. According to Robert Fass, another partner at Friedman Krauss & Zlotolow, doing this goes to the heart of a board's duties.

"A board has a fiduciary responsibility to all the shareholders and you have to go in, in instances like this. Your duties are to everyone and this supercedes the wishes of any one shareholder. If you allow access to be blocked, then you are subjecting yourself to real problems later on." Indeed, there was a clear threat posed by the gas stove. A board that did not act would have been negligent.

A board, therefore, has the right to immediate access to an apartment in emergencies. To such an end, most proprietary leases require that shareholders leave a copy of their keys with the superintendent or building representative. To not do so could be considered a breach of the contract, just as not paying maintenance or violating some other portion of the bylaws is. Not allowing access could be seen as a cause to terminate the lease.

"Most people don't complain about this," says Lynn Whiting, director of management for the Argo Corporation, "but if they do, I tell them that the reason we need it is for emergency situations. If they fail to give us a key, then we have to break the lock and they will be responsible for any locksmith charges."

Where the majority of complaints are likely to arise, however, are from those instances when access is needed but not on an emergency basis, such as window replacement or terrace work. There will be times when contractors and/or staff need to get in but not immediately. To get access in these cases, the proprietary lease requires boards to ask permission.
Therefore, a reasonable time frame must be given to receive a response and agree to the scheduled time of access. Jim Glatthaar, a partner with Bleakley, Platt & Schmidt in White Plains, suggests a 10-day response period.

So, now the big question: what to do when the response you get is "no"? First, don't panic. The exception to the rule is the case that winds up in court. And even then, attorneys report, this may be one of the few times where courts look favorably on boards versus owners. Here, all the protections favor the board. But you'll rarely end up going that far.

Most owners deny access out of a "misguided sense of privacy rights," says Glatthaar. Either that or they are trying to cover a default or embarrassing behavior. Maybe the unit is unkempt, such as the famous Collier brothers' situation, where two reclusive Upper East Side brothers died in a fire in their apartment. It took police a long time to find the two because the unit had newspapers stacked floor to ceiling, next to a car chassis. The other behavior an owner may wish to hide is unapproved renovations. Either way, the owners may have forgotten that they are not living alone in a single family home but in a community where residents rely on each other and must work together to succeed. They may have forgotten, too, that they signed an agreement allowing the board access to their apartments. The important thing to remember is to remind them of the agreement — and make an effort to compromise.

Whiting recalls one co-op where terrace work needed to be done on two penthouse units. One of the owners, whose wife was infirm, was trying to make access to his unit very difficult. He feared that the noise and work would be too disruptive. While there was little that Whiting or the board could do to make the work any less destructive or noisy, there was something they could do for the man's wife. During the noisiest, most disruptive part of the work, the board agreed to put the couple up in a hotel for one night. "Better that than pay for an attorney," says Whiting.

The unit-owners' greatest fear, at least the one heard most often, is that the contractors — or whoever it is that needs access to the unit — will make a mess of the place or, perhaps worse, take something. Whether it's family heirlooms or antiques or fine rugs, some owners worry about having anybody, not just workers, in their apartments. There are steps a board can take to ease the worry — their own and the shareholder's:

Take pictures. According to Marcie Waterman Murray, a partner with Deutsch Tane Waterman & Wurtzel, taking photos is a great way to offer proof of the condition of the apartment before and after. A now-and-then Polaroid of the Ming vase untouched on its stand is solid evidence that nothing untoward happened.

Bring help. If the owner is very sensitive about his/her unit, bring a team in when the work is being done. That can include a board member, the manager, or the superintendent. If the work is especially touchy, have the contractor send a supervisor to oversee the project. It may be worth a little extra money to prevent a lot of hassle.

Make it convenient. Within reason, try to negotiate with the owners when the best time may be to work inside their apartments. Again, it may be worth it to have the super perform additional work on a Saturday for a little extra money, rather than butting heads about what time is good on, say, Wednesday morning. "When dealing with the shareholder, you need to remember that you are dealing with a human being with feelings," observes Fass. "A practical, common sense approach will work most of the time, but boards need to keep in mind that they are entering someone's home."

Alert the authorities. No, not the police. Your professionals. If a situation is getting thorny, let your attorney, manager, and insurance agent know, especially if there has been the threat of litigation. Directors and officers coverage will protect the board in such a case, and there is also the chance that the losing owner would have to pay legal fees.

The bottom line is that boards have every right to enter a unit when necessary. Given that they follow advice, use common sense, and treat the owners and their property with consideration, there is no reason they should be denied.

Otherwise, concludes Glatthaar: "You degenerate into lawlessness. A board can't afford to do nothing. You can't allow yourself to be intimidated by a shareholder. Do what you have to do."