Feature New Question on the Block

Worried about guns in your building? Steve Rosenstein is. As board treasurer of a Brooklyn co-op, he maintains and updates the purchase application for unit sales in his building. “After [the shootings at] Sandy Hook, I started thinking about adding a question or two about gun ownership to the application. I can tell you definitely that boards are starting to ask questions about guns and firearms as part of co-op admissions and habitability.”

With gun violence in the news, it may be time for your board to consider gun control. “In the next one to three years, gun control is likely to be a big issue for boards,” predicts attorney Bruce Cholst, a partner at Rosen Livingston & Cholst. “In the wake of the recent shootings, a few of our clients have asked questions about their rights and responsibilities,” says attorney David Ostwald, a senior litigator at Schechter & Brucker.

“This is the forefront of a trend,” observes Cholst, who notes that gun control raises myriad issues. Boards have support from the local government, too. There is a tough new state law that severely restricts gun purchasing and ownership in New York (on top of already-stringent city laws). But it’s a touchy terrain. Here’s what you should think about.

Gun Control: The Basics

One of the first questions a board may have is whether it can even ask about gun ownership during the admission process. The answer is yes. “A board can ask about gun ownership at any phase of the admissions process, including on the application and at the interview,” says Ostwald. “Gun owners are not a protected class under the applicable laws prohibiting discrimination.”

In fact, a potential buyer can be rejected because of gun ownership. Most proprietary leases and occupancy agreements, as well as New York case law, give the board broad discretion to reject the transfer of a co-op apartment “for any reason or for no reason,” provided there is no discrimination against a member of a protected class, says Ostwald.

And Second Amendment rights, so often cited by gun advocates, are not a factor, say attorneys, who note that the amendment deals with the federal government’s rights to restrict ownership – not the rights of those in privately held corporations.

So, if your board decides that it wants to establish a policy regarding gun ownership, how best to proceed? “It’s perfectly legitimate for a board to ask what it likes. Don’t beat around the bush,” says Cholst.

Ostwald offers a few critical questions that should be asked of would-be purchasers: “Do you own or regularly possess a gun? Do you have a gun license? If so, what type of license? Where was it issued? For what purpose do you own a gun? Have you ever been convicted of a crime, and if so, did it involve a gun?”

The exact wording of your policy should be tailored to the circumstances in your building and should also be specific. “Gun” should be defined as a handgun, shotgun, rifle, or other firearm; you can prohibit possession of a gun by the lessee, occupant, guest, or invitee in the apartment or anywhere on the premises; and you should provide exceptions, if appropriate, for those who are required by law to keep a firearm as a condition of their employment, such as police officers, or those who legally possess a firearm because of their occupation (doctors, jewelers). You can require that people falling into this category not openly display the gun and that they store it in their apartment in a locked place, advises Ostwald.

Buyers aside, some experts say the board should do a thorough survey of its residents to find out whether they want the property to tackle the issue. Some of the topics that boards may consider if they do take on the problem include who owns guns, whether they keep them locked up, where ammunition is stored, whether the gun owner is licensed, and if he or she has any prior convictions.

Then there’s the matter of where to state the policy: the bylaws, house rules, or proprietary lease? In a co-op, the bylaws set forth the guidelines for operations of the corporation – for example, the powers and duties of the board, annual meeting procedures, and election of directors. Therefore, it would be inappropriate to have a gun policy in the bylaws, notes Ostwald.

There is often a fine line between whether a policy should be in the proprietary lease or in the house rules. House rules generally pertain to day-to-day, quality-of-life issues, such as storage of bicycles in the hallway, disposal of trash, and noise limitations. A proprietary lease amendment must be passed by a majority (usually a super-majority) of the shareholders, whereas a house rule merely needs to be passed by a majority of the board.

“We recommend that a gun policy be contained in the proprietary lease,” says Ostwald. In a condominium, there is a split of authority in the courts as to whether a policy such as a gun policy is enforceable if it is only a house rule and not a bylaw amendment. Generally speaking, in Manhattan and the Bronx, it is likely that a house rule regarding gun policy would be upheld in the absence of a bylaw amendment, whereas the opposite may apply in other counties.

“A board can clearly adopt a policy banning guns in the building. While adopting such a policy would be easiest as a house rule (i.e., by board action alone), it would be least vulnerable to legal challenge if adopted as an amendment to the proprietary lease [by super-majority shareholder approval],” adds Aaron Shmulewitz, a partner at Belkin Burden Wenig & Goldman.

The Issues

What’s at stake for boards? “If there’s an incident [involving a gun], everybody is probably going to get blamed. They will say the building should have screened purchasers or known that guns were owned, or taken precautions,” warns Cholst. “The board may be named as a defendant in a lawsuit.”

“Should a shareholder shoot someone, it generally would not create liability for the co-op if it was the first shooting incident by [that individual],” says Shmulewitz. “Similar to ‘vicious dog’ cases, if the co-op board had no reason to know of the shooter’s dangerous propensities, the co-op generally won’t be liable for [the] criminal act.”

New York courts have generally held that property owners are not guarantors of the safety of those who enter upon or live on the premises. Nevertheless, the corporation could be held liable under these circumstances if the board knew or should have known that such an incident would be a “significant, foreseeable possibility” and that it failed to exercise reasonable care, says Ostwald. “The reason these legal standards sound somewhat vague is because every situation is considered in its context on a case-by-case basis,” he adds.

For example, if the board accepts an applicant who is a police officer, and an incident occurs, it is unlikely the board would be held liable. However, if the board knew at the time of the application process that this police officer had a history of unjustified shootings, the outcome might be different. A more obvious example, says Ostwald, would be a situation where the board knows that a person has a history of violent behavior, mental illness, or criminal conduct and fails to take reasonable care to address the potential danger. Such measures could include installation of security cameras, hiring an extra security guard, or pursuing an eviction proceeding.

A court will closely scrutinize the board’s prior action in the event of an incident on its premises. The best course of action, says Ostwald, is for the board and management to be vigilant, proactive, and responsive when it sees the potential of harm to people on the property. “Courts and juries do not look kindly on property owners who ignore signs of danger.”

Boards should maintain appropriate insurance at all times. Most general liability policies would provide coverage for a suit in which the co-op is named because of an injury from a gun-related accident or shooting in the building, but some companies do have a firearms exclusion, as well as an assault and battery exclusion. Either could conceivably exclude coverage for gun-related incidents, so insurance policies should be reviewed carefully, says Edward Mackoul, president of Mackoul & Associates, an insurance broker.

Challenges

Taking on gun control poses challenges. “The issue is really a debate about boards representing the best interest of owners versus privacy,” says Stacey Patterson, of counsel to the law firm of Herrick, Feinstein.

While the board can regulate apartment use in a co-op, it is restricted in what it can do in a condo. Condos are considered real property and each resident owns his or her space. A co-op, however, is a corporation that owns the entire building, granting the resident (who has shares in the corporation) a lease. The board has much greater authority to restrict gun ownership in a co-op.

That said, should boards take steps to regulate gun ownership? And what steps can they take? Many experts say the time may be here. But even if you can impose rules, many point to an underlying philosophical question: restricting what a person can do in his or her apartment is controversial. “How far can the board go in regulating an occupant’s life within their own home?” asks Cholst.

“I think the main challenge will be balancing the safety, protection, and prevailing co-op community’s sentiments about gun ownership with the legal rights and privileges of gun owners,” notes board member Rosenstein. “Can someone who answers affirmatively about being licensed to own a gun or who actually owns a gun be rejected by a co-op board simply for being licensed or for owning?”

The most challenging issue would be the difficulty in monitoring gun ownership. Firearms are generally concealed or securely stored. This could make it difficult to prove a violation if the case went to court. Existing owners of firearms would still be bound by any policy, as unit-owners/shareholders are obligated from the inception of their ownership to abide by all provisions of the governing documents.

Experts warn that it would be difficult to enforce restrictions. “What mechanism would you use to enforce them?” says Patterson. “Do you search units? I don’t think so. If you see someone carrying a gun in public areas, then yes, you do a search. Having restrictions is useless if you can’t enforce them.”

Alvin Wasserman, director of asset management at Fairfield Properties, sees other problems. “If a cooperative were to adopt a no-gun rule, would a criminal without regard for the law [applying for a co-op apartment] hesitate to lie to a cooperative board about gun ownership? Thus, if a no-gun rule could be passed in a cooperative, law-abiding owners would not have guns and criminals would. This would be a microcosm of conditions in society as gun control laws become more restrictive on law-abiding citizens.”

Some gun advocates raise the possible economic downside of putting in place such rules. Says Patterson: “Potential buyers may be fearful. They may think there were problems in the building in the past. What impact will such policies have on potential buyers? Will they reduce the value of the units? There’s a lot to consider before passing gun control regulations.”