Biting the Bullet: What To Ask About Guns at Co-op Admission Interviews
July 9, 2013 — With the spate of mass gun killings over the past year, some condo and co-op boards are expressing heightened concern about weapons in their buildings. Part 1 of this series established that boards may prohibit gun-ownership since the Second Amendment applies only to the government, not privately held corporations. Part 2 examined the issues involved in deciding whether or not to prohibit guns. In this final part, we look at gun questions a co-op board can ask at an admissions interview, and what steps condo boards can take.
David Ostwald, a senior litigator at Schechter & Brucker, offers a few critical questions that co-op boards should ask at interviews: "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, Ostwald advises. "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.
Surveying Residents
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.
Condo Options
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.
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