Dealing with Dearly Departed Owners: What Are the Board's Responsibilities?
Nov. 19, 2013 — When a co-op shareholder or condo unit-owner living alone has either died or become incompetent or significantly incapacitated, and is no longer residing in the apartment, what should a board do? Whether you're in a cooperative or a condominium, you occasionally will be faces with requests for access to the apartment by a person claiming to be a close relative, boyfriend, girlfriend or legal representative of the owner. And even though the person making the request may be known to building staff or management, making them inclined to provide such access, you still should seek legal advice in this situation.
"Where there is a death, no one should be permitted in the apartment except for a duly authorized executor or administrator of an estate, or a person to whom an emergency order granting access has been issued by a court, says attorney Linda Plotnicki, a partner at Kaufman Friedman Plotnicki & Grun. "The board is hardly in a position to know if there will be competing claims to an estate," she notes, "and granting access to unauthorized persons could embroil it in such a dispute.
Estate of Mind
Complicating the issue, says, Ronald A. Sher, a partner at the law firm Himmelfarb & Sher, is many owners' unfamiliarity with estate planning. "Many shareholders and unit-owners who purchased their apartments before 1996 — when the law changed the presumption of ownership in favor of marriage or married persons — are unaware of how they hold title or simply presume they have rights of survivorship and title," he warns.
Any married couple who bought their apartment after January 1, 1996, is presumed to have rights of survivorship benefits and protection from creditors. But to protect married owners who bought before that date, Sher suggests, boards should "send a letter to all owners suggesting that they look at their stock certificate or deed … to determine if the correct title designation appears on the shares of stock or deed," which would be:
- JTWRS: Joint Tenants (sometimes rendered Tenancy) with Right of Survivorship
- TEN ENT: Tenancy by the Entirety
- H&W: Husband and Wife
If such designations do not appear, Sher recommends that boards ask owners to check with their personal or estate lawyer, transfer agent or the co-op / condo managing agent to begin the procedure to change the designation. "This simple exercise can save [owners] time, avoid the necessity to probate and avert unnecessary legal expenses, especially if both spouses are still alive and can facilitate the expeditious appointment of an executor," he adds — and all of which can help simplify things with any transfer approvals that a board might need to give.
Similarly, what should boards do in the case of an incapacitated owner, or one who has been declared incompetent by a court?
The answer, says Plotnicki, is that "only a person who has legal authority to act on behalf of the owner, either by court order or a valid power of attorney — which must be reviewed for legal sufficiency in the circumstance — should be given such permission. If access is provided to a person who is not so authorized, the board may be exposed to liability for such things as theft or unauthorized removal of items from the apartment — including possible claims relating to the destruction of a will — damage to the apartment or property, or trespass."
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