Sue, I'm not a lawyer. But this is how the system works, and will take years before anything happens. It's in the hands of your insurance company now. As a board director, the only thing you can do is cooperate and wait. We have a similar situation in my coop that has being going on for 8 years.

VP,

Thanks for your input. I am also not clear about who exactly is responsible for this tree pit. It was put in over a decade ago under the City "plant a tree" program to beautify the block. City didn't say anything about empty the pockets of our Co-op should someone trip and fall as a result of the "beautiful" tree.

I would say, *ABSOLUTELY!*

But don't take my word for it. Ask your insurance carrier and/or attorney what risks and liabilities you incur (financial and otherwise) if an intoxicated guest goes over the edge.

I have to wonder if an intoxicated guest falling over the edge at a rooftop viewing party has ever happened in the history of New York. I couldn't find anything in the complete NY Times archive. That said, knowing one's insurance liability is a good idea.

The party hosts could be responsible if liquor is illegally provided and someone gets into an accident dwi. There is liability and you need a permit.

Be certain that you have the proper liquor license or permit if the liquor is being sold. This is a 'biggie"

I'm not sure how your awning is placed, or where it is installed, but let's say it's on a balcony or terrace for your apartment. You Offering Plan may consider this to be a "limited common element" that is essentially common area that only you have access to. If this is the case, you can't alter common area elements without the prior written approval of the Board / Managing Agent.

If this area is not a limited common element, and it is your personal space, the Offering Plan most likely has a provision that you can't do any renovation work without the prior approval of the Board / Agent. This is most likely to prevent unauthorized and uninsured contractors from working in the building and potentially damaging the building, etc.

If the Board is asking you to either take it down or mount it on poles, it would appear that they are acting within their guidelines and if anything, you should have approached them prior to the work commencing to ensure that you were in compliance with the building's rules and regulations on these types of installations.

Thank you for your input Mark B. I never received a copy of the offering plan....previous owner never followed through giving it to me. Fairfield said I need to pay $175 if I want a copy. I called my lawyer to see what I can do about this. I sent the Managing Agent photos of my awning and of one of the collapsing removable gazebos I've seen in the community.
Verizon Fios just drilled 30 holes that run the entire length of my fenced in patio to install their cables. Yes, they got approval from the board of managers, I did not. Still, I want the opportunity to present my case. I would even remove it in the interim if that will help....although I feel it's ridiculous that they are making such an issue about it. I see large metal decorations on many other patio walls....which most certainly are not holding with a piece of tape. So, what is the difference!?

There is a difference between a large metal decoration (and lets say a free-standing one) or one on a wall and an awning. I assume the awning is affixed to the patio above you?
If other patios have the SAME type of awning, you could dispute that precedence has been set and if they do not allow yours, then they must instruct other owners to remove their awnings (or blinds etc.) that are for the purpose to block sun/privacy. That's only if there are the SAME type of awnings on other units. You need to get a copy of your offering plan; you should know the "rules & regulations" of where you purchased.

You need to treat them as a contractor. See attached link
https://www.sba.gov/blogs/5-things-know-now-about-hiring-temporary-or-seasonal-workers

Thank you very much Ned

If it's only for a couple of days, I would agree that hiring them as an independent contractor would be okay. However, beware of union requirements, if relevant, and longer term temp. employees.

I would contact the owner of the unit via letter and advise them of the situation clearly indicating the boards concerns and for example; tenants violating house rules, tenants doing this or that. I presume your issues are with the tenants (that are managed by the management company). And I also assume that the owner hired the management company.

I agree with Mark and Ned, however there are some additional things that can be done if the Board is in agreement.
1). A Board letter to the Holder of Unsold Shares (Sponsor) letting them know their tenant is in breach of the House Rules, or Bylaws, or Proprietary Lease - whatever are involved;
2). The same letter from your Management Company to the H-of-US;
3). followed by a letter (when nothing improves) from the Board's/Coops Lawyer with a demand to correct the situation.
4). Then the Board authorizes the attorney to issue what is known as a 'Notice To Cure' document. This establishes a set of demands, based on legal criteria, and a reasonable deadline (relative to the nature of the issue) for the 'Cure' to occur by, if it doesn't, the Board can then move to force the divestiture of the apartment legally from the shareholder.
Because, the Sponsor is still a shareholder, and while they have some special exclusions as to sales etc. they are still a shareholder and you have a relationship with them, and not the tenant. That is your point of attack. It can work. Don't let his Management Company who handles property for him screen or buffer the shareholder from you, they don't actually have those rights due to the fact that they are not the shareholder, the Sponsor is. However, be prepared for verbal promises, assurances, all stall tactics. start a paper trail, and insist that all communication be in writing. It's not fast, but whether they admit it or not, they can actually lose ownership of the shares. None of the above applies to Condo's, only to Coop's.
By the way, if it is a Proprietary Lease breach, and they have really angered a very large portion of the Shareholders, you can do super-majority vote of Shareholders to force the sale. and that (Prop. Lease Votes, not Bylaws- that has to be at a specially called meeting) can be done by a mail vote based on a carefully and legally written motion.

Writing to the tenant is problematic because he has diminished mental capacity, possibly early dementia, and has an executor handling his affairs.
The issue is the tenant being unable to care for himself and being in an unsafe situation.

You don't actually have a legal relationship with the tenant, you, as a Coop/Board have a relationship with the shareholder of the shares related to that apartment. You therefore have to direct your efforts to dealing with the shareholder, who is answerable for and responsible for, ultimately, the behavior of their tenant(s). They are in a bad position given the rights of Rent Stabilized Tenants under the law, and the Court being very, and appropriately, protective of the disabled and seniors with possible dementia issues. Is there any family with responsibility here? A guardian? You might need to contact social welfare services etc. in the process. IF there is anything that is occurring that is a potential endangerment of that person to themselves or the other shareholders then you need to call the Police, or Fire Department, especially to get it on record. Do not enter the apartment at all, if there is an emergency and the Board has rights under those conditions, there must be at least one Board member to accompany the Super, and it is better if a Police Rep or Fire Dept Rep is with you, as they have legal protection that you do not. IF you enter without them and there is a problem, or question as to the 'realness' of the emergency, you can be in a lot of trouble.
The most important thing is to start a paper trail.EVERYTHING in writing, return receipt, and consistent, do not let time lapse as the Court will view it as not current or just occasional. Your best shot is to leverage the holder of unsold shares who has no protection from you writing and filing for breach of Prop Lease, Bylaws, House Rules, whatever is affected. You must keep an accurate log of times, dates, incidents and who reported to. Be proactive, issues do not usually go away by themselves, they tend to progress and deteriorate over time. Be kind, but be firm. You have an entire Coop to protect. It is best to involve your Coop attorney early in the process if you feel it is not going to be a simple matter.

Unfortunately, there isn't much that you can do from your side to affect the management company that the original sponsor hires for their individual units. However, if you do feel that things are neglected or are not properly being handled, I would document them and send them to the sponsor that has hired them. Depending on the level of involvement, the sponsor may or may not be aware of the deficiencies that exist with their current agent and may look to a solution if there is negligence found (or if these actions are negatively affecting their value).

More likely than not, the sponsor is losing money on the apartments now (the income being received on these apartments may be less than the maintenance that they're paying each month) so they may not be too keen on hiring another firm that may cost them more money out of pocket.

Writing to the tenant is problematic because he has diminished mental capacity, possibly early dementia, and has an executor handling his affairs.
The issue is the tenant being unable to care for himself and being in an unsafe situation.

All the more reason for the board to write to the owner; it is a letter of concern for the tenant and their capacity to take care of, both from and a health and safety perspective, themselves (and the unit) and that the board has a responsibility for the health and safety of residents. I would cc: their management company.

The owner needs to be advised of the boards concern for their tenants welfare. It's in the owners ballpark to determine the best course of action (initially). I am certain that a letter of reasonable and compassionate concern will prompt the owner into action. Give the owner a chance to address the concerns before you take radical action as suggested by dsil. Any court would ask "did you make the owner aware of your concerns?".

Two board members wanting to do something in their unit that is not being done today...sounds to me like a personal agenda.

To play it safe, I would say "yes" you need owners approval as I assume there are costs involved in doing this and this changes the landscape; you would be setting precedence for other owners to do the same. I would pass on the skylight; lots of issues with skylights and you would now be responsible for any leaks etc.

At the outset let me say I am completely opposed to any sort of roof penetrations. They are gateways for water damage and mold.

That being said, if there is still a desire to consider penetrations by individual shareholders, you should first look to your proprietary lease. In most PL's the roof is a common area so all the terms of transferring common areas to exclusive shareholder use need to be followed. In addition I would consult with the board's attorney to see if there is any language which can be included in the transfer such that the shareholder holds the co-op harmless if any sort of damage is a result of the penetrations. If you can make that a condition of transfer I bet the shareholders will think twice about assuming that sort of liability.

My building specifically prohibits any sort of roof and outer wall penetrations. There are central A/C units where the compressor can be mounted in a (non-fire-escape) window. As Ned said. skylights pose their own maintenance problems and should be avoided.

This practice would seem to be contrary to the bylaws, which probably state something similar to: "The Board of Directors may from time to tim by resolution fix in advance a place and time for holding meetings of the board, and except as otherwise provided by law or by the Bylaws, such meetings may be held and any business may be transacted thereat without notice. Specials meetings of the board may be held at any place and time and for any purpose when called by the President or Vice President or any number of Directors on ten days notice of the place, time and purposes thereof given or mailed to each director."

The main issue that I see with these meetings is that they were not properly called for as noted in most Bylaws. Notice needs to be served to all directors in order to be in compliance and any and all decisions made at these unofficial meetings are just that - unofficial. They can't be acted upon without proper discussion at a properly called for meeting of the Board. The way around this is if you have a monthly meeting that is "the second Tuesday of the month at 7:30pm in apartment 6B" and then official notice would not need to be served each and every month; it will be implied as notice given when the schedule is made.

Before going the route of bringing this to the Shareholders, I would keep it internal and cite the Bylaws paragraph that notes the way in which meetings shall take place and then mention that you're going to go outside the Board if they continue to act as a rogue agency. If there are decisions that affect the Superintendent and they are in conflict with the Union's contract with the building, then it could have implications - but without knowing all of the details, it is hard to answer that (plus, I am not an attorney and this is my opinion only).

Hope that helps.

Are they meeting "in secret" or are some of the 9 board members unavailable to meet / don't want to meet / are not engaged and thereby defer to the members who are engaged and meeting, outside of regular meetings to discuss issues.

I would validate the information first / the reasons before assuming that the members are meeting in private to advance a shared agenda. A simple letter to all board members indicating that it has been reported that certain board members meet, without all board members in attendance and you would like the board to comment on this reported behavior will allow the board to respond accordingly.

I am on a board and it is fairly normal for part of board to have discussions between meetings.

The main issue is board members have a fiduciary responsibility to building and main goal is to improve building, improve finances, maintain building, reduce risk, cut costs if possible etc for betterment of entire building.

Are these real meetings or just folks talking and is consolidating the superintendents function under his authority good for building or just good for the four folks.

I mean I have plans to get our loan paid off early, grieve taxes and talked to half the board, the other person wants to fix cracked sidewalks, and paint rails, a third person was interested in landscaping. We all talk to part of board between meeting and at meetings we take it to vote with a full board.

As long as it is honest I am ok with off the record meetings. Honestly the whole tax grievances process at best one other person on board fully grasps and I discussed it with pre-board meeting.

Thanks for your comments Mark. There is a lot more background that I can add (but not in a public forum). I'm thinking that the parties involved will already know this is about them just by my first post and they most likely read this board. The smooth talking persuasive manager has latched onto an influential board member and are directing this. This building had a power hungry manager about 15 years ago who convinced the board to give him 3 jobs (Superintendent, Manager & Head of Security). He was put into the union for purposes of benefits.(As a result when he was gone we were forced to keep an extra union position.) The board went along with this. He fired & suspended at will and then went to the board for justification for his actions. It took us 3 years to get rid of this guy and the sitting board (3 seats each year). We don't want a recurrence of this after 10 years of running a tight ship. During interviewing for a new management company a few months ago, one company commented that our present manager is a former employee. When asked why he no longer worked there, we were informed the board objected to his controlling methods and the company lost the building and he was fired.

Hi,

Secrecy and discretion by themselves are not bad. Please check your by-laws. Ours has a provision for an executive committee to handle things between meetings. We don't currently use it and I am unsure whether legal judgments have limited its use. But it is there in case we need it.

It is also common for my building to discuss items between meetings via e-mail as some items simply cannot wait for the next meeting.

Furthermore, our building staff reports to our managing agent. When board members suggest items to be done, they go through the manager. This allows the staff to have ‘one voice’ upon which to listen and schedule their time. The manager reports to the Board and the staff knows who is in charge. During an emergency (this is rare), the staff listens to the Board members on site if the manager is not available.

My suggestion is that if you are not one of the four, then ask to be included. Go in with a neutral attitude, learn what is going on and why (i.e. earn their trust). Then, if bad stuff is going on, you can expose it or if good stuff is going on, then you can be part of it.

Good luck!

Steve

You just said that they can be amended by a 2/3 share vote OR 2/3 vote of the board (excluding board compensation) so yes, it appears that they can be unless there are other by-laws, such as board compensation that you mention, and to prevent the board from amending without share vote.
If your by-laws allow for the board to amend by-laws, then they have the authority to do so including establishing fines for violating house rules.

There is nothing wrong with them amending the property lease if it is in the best interest of the co-op, i.e. protects the co-op and for example, by adding a clause identifying that "house rules must be observed and any violation are subject to fines". A clause such as this ensures that the person signing prop lease is fully aware of their responsibility to abide by the house rules and consequences. It protects your co-op.

Somewhat surprisingly, our attorney told us that the board cannot vote to impose monetary fines, whether by altering the by-laws or otherwise. Such a fine would be considered a material term of the proprietary lease, and most leases can only be modified by a supermajority vote of shareholders (2/3 of shares, in most cases).

Your proprietary lease may be atypical - and you should check - but it would be very unusual for the board to have the power to amend the lease in any way. And they certainly can't vote to give themselves a power they don't have! The by-laws, however, can typically be amended by the board alone, but not if the changes exceed the scope of the board's authority. "All shareholders must paint their apartments entirely in purple."

Your lawyer is right and wrong at the same time.

House rules such as a late fine for not paying maint on time etc the average owner does not know in a court of law you cant enforce it. We charge them, put them on the bill and folks pay them.

It is time consuming to do a 2/3rds vote and then to update your by-laws require legal fees and a trip to Albany. Meanwhile 90% of time it is not necessary.

Your lawyer is spliting hairs. You can set up"house rules" the question of whether legally you can enforce them is a different matter.

CondoGuy1, you're right that a board might get away with instituting a fine that can't be legally enforced. The board might even get shareholders to pay fines that they aren't obligated to pay. But it looks really bad if the board gets caught exceeding their authority, especially if they *knew* they had no right to impose those fines. And even if the fines were enacted with the belief that they were okay, it's still pretty embarrassing if the truth comes to light.

There have been numerous cases where boards passed seemingly reasonable fines in good faith, and had to back down when they were challenged. This doesn't instill confidence in the board, and undermines shareholders' perceptions of the fairness and competence of the board.

A postscript to my own posting -

I do agree that token fines for objectively clear misdeeds aren't going to raise many hackles in practice. No one really objects to a small late fee for an overdue maintenance payment, for example, especially since the board *is* entitled to interest in that case.

The problem is imposing larger fines, or enacting fines for more problematic areas such as violations of house rules. Someone who's a big enough jerk to regularly violate house rules isn't going to fork over a fine without a fight. And unfortunately, they'll win the argument about the fine, possibly undermining the board's legitimate argument about the house rule in the process.

OP here.
I'm familiar with the North Broadway Estates decision holding that a Board may not amend House Rules to create fines. But, have other courts reached the same decision? Did this rule survive Levandusky?

Also -- In my case, the Board would not be using its authority to amend the House Rules, but the authority to amend the By-Laws. It's one thing to say that a Board's authorization to amend House Rules is not sufficient to allow the Board to impose fines. But the By-Laws are one of the core governing documents. If the Board is given the authority to amend it, why can't it exercise that authority under the BJR to impose reasonable fines?

No, Levandusky doesn't give the board the authority to impose fines. One of the prongs of Levandusky is that the Business Judgment Rule (BJR) only protects the board's actions if they are acting within the scope of their authority. They can't create new powers they don't have.

It's true that the by-laws are a core governing document, but they don't trump the lease. A board's inability to impose monetary fines is a special case of a larger issue: the board can't change any material term of the Proprietary Lease. That can only be done by shareholder vote, in the case of most leases.

We have an inefficient, and ethically questionable President and Secretary of the Board already for 15 years; The Board is making constantly wrong decisions and doesn't like to be questioned. I am highly surprised reading all your comments, how most of the shareholders have access to some information that in our Building we do not even heard about. For example "Contracts", once my husband who is an attorney asked in one of the annual meetings about a specific contract which was a disaster, and the President said "me" my husband asked: "did you read it? his answer was: "no" and there are so many examples. Eventually, there are some of us that want to do something to change this situation. Do you have any suggestion?

You say you've hired a lawyer, and that person should be your guide on this. That said, here are a few comments from a non-lawyer:

* How the co-op was advertised at the time of purchase isn't relevant now. Any argument you have there would be between you and the long-departed seller. It is very unlikely you could pursue any action against the seller after 17 years.

* The offering plan should have the definitive answer on exclusive rights to the roof deck. It's possible that your board is right and the language is vague. This is very much a question for your attorney and has no fixed answer. But if you can show that the offering plan really does give you exclusive rights to the roof deck, it would be hard for the board to mount a reasonable argument against that.

* Increasing the shares is the most eyebrow-raising part. This sounds like the board has decided the offering plan really does give you exclusive use of the deck, and they want some compensation for that. But unless you have an unusual proprietary lease - or have actually signed some sort of agreement after the initial purchase saying that you accept the additional shares - this seems unlikely to hold up. If your co-op uses the template common to many 1980s conversions, check paragraph 6, "Changes in Terms and Conditions of Proprietary Leases." Ours has this phrase: "The proportionate share of rent or cash requirements payable by any lessee may not be increased ... without his express consent."

Again, you need to talk to your lawyer about these points. Make sure you have an attorney who is conversant with the intricacies of co-op law. Your general-purpose family lawyer may be excellent, but would be the wrong person to handle this for you.

I agree completely with Carl's advice and observations. Check your offering plan to see if the roof deck is included in the schematic of your unit.

Something you might research is a set of statutes called "adverse possession". Adverse possession basically states that if you've been using property that doesn't belong to you "open and notoriously" (meaning that you didn't try to hide your use), after 10 years the property is yours. In NYS most laws regarding real property at taken to include co-op ownership as well.

I am also not a lawyer, so I don't have any idea of adverse possession applies in your case, but it would be interesting to look into.

Couple of questions to clarify:

-You are paying $725 - is that more or the same as other units your size?
-Do other units of the same size (same maintenance fee) have a balcony or an outdoor space that they have exclusive right to?

Oh boy. That's all I can really say. Our 12 unit co-op took the legal route and ended up in several different courts with no good outcome other than emptying out our wallets. Of course, board and building did try everything under the sun prior to seeking legal route. In our case shareholder did not not abide by the "carpet rule", noise was terrifying, police were called, child services was called - all to no avail. Shareholder was in violation of other house rules as well, denying everything. Shareholder was also a lawyer and began several negative campaigns in and out of court, personally going after board members, even going on fox news Long story short, the whole affair left the building a mess.
I was left with the feeling that there really isn't much a Board can do when someone violates house rules or other tenant to tenant issues. That's unfortunate.
Our building did revise our PL and House rules giving Board more power to enforce and possibly use penalities. But, it boils down to people behaving neighborly, respectfully and taking ownership when in violation.
Sorry, it this wasn't much help.

I would simply prepare a letter from the board to the reported violating unit advising them that you have received a reported noise nuisance complaint with the reported sounds of what appears to be furniture being moved or dragged and large items dropped on the floor in the late evening/early morning hours. Then just cite your house rules that apply for noise, end the letter by asking them to contact you if they have any concerns and see if they respond. Advise the complainant that a letter has been sent to the unit.

You could send a letter to units beside the unit making the noise and across from them advising them that board has received complaints regarding noise nuisance from unit XX and that it would be helpful if they have experienced noise issues to contact the board.

If a board member lives in close proximity to the complainant and is willing, offer to come to their unit to listen first hand (providing availability). You will either hear the reported noise - or not.

I think after all these steps you will find out if there is noise, consistently or not, or you just have a "complainer" on your hands, in which case and after all these steps have been taken, advise them to report the noise to the Police directly and to advise the board accordingly.

You might consider consulting an acoustic engineer to see if any equipment could be set up to monitor and record noises in the apartment. They might also have suggestions as to the source based on their experience.