She’s Not There

“It’s too late to say you’re sorry./How would I know, why should I care?/Please don’t bother trying to find her. She’s not there.” The old Zombies song rumbled through my head as I considered the case of the capricious cooperator. She had moved into the apartment next door with great fanfare. She had been the most promising of shareholders in the small Manhattan co-op. Friendly and talkative (perhaps a tad too much) at the interview with the board, she had talked about how much she loved the neighborhood, how busy she was at her work, and how she adored the co-op.

The president of this small co-op had gotten accustomed to silence at night from his next-door neighbor. But this new owner was a talker. He could hear her talking on the phone, chatting with friends at parties, and schmoozing with someone while opening drawers at night. He spoke with her about it. She was friendly and apologetic, even writing a note saying she would try to tone the noise down.

Then things got a little strange. The board president was preparing to sit down to dinner with his girlfriend when the doorbell rang. Upon answering, he found himself face to face with a young man who was very apologetic.

“So sorry to bother you,” he said meekly. “I’m living in the apartment next door and I can’t seem to get the stove to work. Can you help?”

The president was puzzled. That was the talkative lawyer’s apartment, he thought. “I can help you with the stove, but I’m afraid you can’t be living there legally. This is a co-op, I’m the president, and I know the owner of that apartment, and you’re not her. She has to make a formal sublet request.”

The young man backtracked quickly, saying he was not subletting but that he was just house-sitting while she was away. The next day, the president got an angry call from the owner, saying that he was harassing her guest and that, of course, she wouldn’t sublet without permission.

She and the president had other run-ins. He asked a stranger who was entering her apartment who he was (he said he was her boyfriend; she called the president the next day and complained that he was spying on her); and then, when at 2 A.M., the president’s girlfriend knocked on the wall to get her to lower the noise level, the shareholder came banging on the president’s door. Accusing him of having it in for her, she told him she was tired of his harassment.

Things settled down after that and the board president made great efforts to get along with the owner, who said there were no hard feelings over what had happened. Finally, two years later, things seemed normal. But then he noticed a new tenant was apparently, living there. The president was afraid to get into another dust-up. Yet he felt he had a duty to perform. What should he do?

“It’s too late to say you’re sorry./How would I know, why should I care?/Please don’t bother trying to find her. She’s not there.”

I asked veteran real estate attorney Steve Wagner, a partner at Wagner Davis, what he would suggest as a solution. The first step would be for the president to remove himself from all discussions and decision-making in the matter. In fact, he should act in his capacity as a shareholder, sending a letter to the board, formally complaining. His role in investigating the situation any further should end.

“If the situation persists,” Wagner said to me, “I would recommend an Action for Declaratory Judgment and Injunction (DJI) rather than a holdover proceeding. In a holdover proceeding, you are trying to throw someone out, and the court is reluctant to do that, and it is also easy to cure. They just move back in. In a DJI, however, you ask the court to establish the board’s power to act to enforce rules and regulations, and, in this case, to find that the tenant has violated the subletting rules and then permanently enjoin them from violating them again.” If they don’t obey, added Wager, the board can go back to the same judge, who will find the offender in contempt.

“You don’t want to be in front of a judge who ordered you not to do something and you did it,” said the attorney. “If you do, it can mean fines and jail time.”

Then she really would have to sublet.