Before Selling, You Have to Disclose Your Flood Risk

Lewis Montana, Partner, Levine & Montana

After the deluge. When Hurricane Ida hit in 2021, there was extensive flooding in Westchester County. The county legislature has been aware of arteries being flooded whenever there’s extensive rain, so it passed a law effective in August 2022 that centers on disclosure of flooding. This law applies to owners of all commercial and residential properties, including co-ops.

Full disclosure. Landlords and co-op boards must disclose to potential renters and buyers if the property is in a flood hazard area on the FEMA maps, and if there has been any flooding on the property within the last 10 years. The County Planning Commission has produced a disclosure form. The law defines a flood and flood damage in an extensive way, and it encompasses not only co-op apartments but also the grounds and any storage areas on the property. What I can’t emphasize enough is that the disclosure has to be made to incoming shareholders prior to the signing of the proprietary lease, because this law gives them the opportunity to sue if the landlord or co-op board failed to make the disclosure. 

Legal exposure. Boards need to take this to heart. This is going to be a team effort between the board, attorney and managing agent. My suggestion is that the disclosure form should be filled out by the co-op and made part of its application process. That way, potential shareholders will be apprised before they sign a lease.