In: manhattan property management
A lot of building owners and Boards have one thing in common; they’re often-times getting involved in the minutiae that they hire their property management professionals to handle. Whether it’s giving the staff direction on the day-to-day or getting directly involved in tenant affairs, there is potential for a large amount of confusion and misdirection for any and all building staff.
We see this all the time in property management; a resident refusing to give a copy of their apartment key to their landlord or to the building staff in the case of an emergency. In New York, it’s part of the law that the tenant should give a copy of their key to the landlord and in Proprietary Leases for Cooperatives, it notes that the Lessee (shareholder) shall give a copy of their key to the Lessor (Coop Board or representative).
This question and answer came from the forums on Habitat Magazine (http://www.habitatmag.com). The question was pertaining to a Shareholder who had taken on a roommate and wanted to know that if they left the roommate in the apartment without the Shareholder being present, can this be considered a sublet, even if the Cooperative Corporation doesn’t have a “sublet policy” in place.
A Shareholder in a recent correspondence noted to Management that the shares attributed to their unit were too many in the Schedule A of the Offering Plan. Apartments that were attributed garage spaces had an extra 50 shares built into their proprietary lease and stock certificates, but this is the one apartment that had the extra shares in the unit but no garage to attribute the shares to.
Roughly 30-years after the building went Cooperative, this was noticed by the Shareholder. At the time of the purchase of the original shares from the Sponsor, an attorney looking into the building’s Offering Plan and supporting documents would have picked up on this discrepancy with a bit of due diligence. The Shareholder, having paid maintenance for a period of 30 years was only now looking into the perceived extra maintenance that they have been paying. There is no way, now, to adjust the shares in the Schedule A as that would change the entire layout of shares within the Cooperative as a whole.
With a bit of due diligence and paying attention to the details while purchasing the apartment, this mistake could have been avoided. They would not have been able to change the Schedule A but they would have been able to step away from the purchase in the first place, before the financial damage was done.
Proprietary Lease expiration dates are often overlooked until the expiration date is creeping towards 30-years from the present time. Banks like to know that the loans they are giving out to Shareholders (and to the Cooperative as a whole) are not going to be deemed worthless by an expiring Proprietary Lease that would effectively cancel their collateral.
Updating and extending the Proprietary Lease expiration date is a painless exercise, but one that requires some planning. A special meeting of Shareholders or an Annual Meeting can satisfy the vote to extend, but it has to be noted on the agenda when either notice of meeting is sent and usually, a supermajority of Shareholders are required to approve the change since this is changing the core building documents. Extending it as far as 75 years from the present date will allow a Board to have quite a bit of breathing room and a long time to go until those banks pop up their heads again.
Should your Proprietary Lease be close to expiring (in the banks’ eyes, any way) they may ask for a letter from the Board or from the Managing Agent to place in writing that the Corporation intends to extend the Proprietary Lease as soon as possible.
Minutes of a Corporation are one of the most important documents in Coops and Condos but they’re so much more than just keeping track of what transpires in the meetings of Directors.
They can also be used as discovery in a lawsuit (whether the entity taking the minutes is the plaintiff or defendant) and they can also be used by legal counsel of those who are looking to purchase in the Corporation or Condominium.
We’ve seen a slew of minutes that are so much more than they have to be; sometimes an hour long meeting is summarized in a multi-page document that details every single conversation and every point that is made.
Our recommendation is that all minutes should be bare-boned and contain minimal information while still maintaining the character of all of the decisions that were made at the meeting.
The important items that should be on the minutes include; time, date and place of meeting, who was present / not present, all motions that were made and how they were voted. With keeping these minutes to a minimum, a Board can release minutes to any and all who are requesting them without redaction and they give a clear and concise record of important decisions while protecting the Corporation as a whole. Keeping them simple has an added benefit as well; they can be easily remembered at the next meeting when it is time to approve them.
In New York City, residential apartment buildings that are greater than 6 stories are required to do an exterior inspection every five years, pursuant to Local Law 11. Right now we are in the midst of Cycle 7 and beginning in 2015, Cycle 8 will be upon us.
On May 5, 2014 the City of New York released a memo to all building owners that included with the Cycle 7 reports, all buildings that need to comply with the LL11 now have to go one step further and inspect all balconies, terraces, handrails, fire escapes, etc. The buildings need to be inspected by a qualified architect or engineer and then must submit a letter to the city by February of 2015 outlining their current status; whether that is SAFE, UNSAFE or SWARMP.
We are recommending to all building owners that they get in touch with their architect of record to go over this new law and begin the process of inspecting for the required report.
This is a quick tip to lock down your House Rules to make them more enforceable.
Many buildings have House Rules that are outdated, or even original to the conversion. If the House Rules are outdated and are not providing for infractions and penalties for those breaches, are they really enforceable?
The Board has the authority to amend the House Rules and we recommend that when the House Rules are redrafted, place the specific infractions, penalties and fines that will come with each infraction. By laying this out, each resident will have notice of what the graduated steps will be for any breach of the Rules.
Once they are redrafted, we recommend mailing them out or handing out to each resident. When they do receive these new rules, each resident should sign an acknowledgment form that they both received the rules and after they had time to digest the new changes they should acknowledge that they have read and understand the House Rules as they are now drafted.
In addition to current residents, we also include both the House Rules and the Acknowledgement in all resale, sublet, refinance and transfer packages for each building so that all future residents will have read and understood the House Rules (and we have it in writing).
By following this simple advice, all buildings should be able to clamp down on breaches of the House Rules and can collect on the penalties that will no longer be seen as arbitrary.
**DISCLAIMER** I am not an attorney and this is my opinion based on experience in the field of Property Management. For legal opinion on this and other related matters, it is in any person or Board’s interest to seek independent legal counsel.
In this video, Mark Levine of Excel Bradshaw Management Group tackles the issue of a Cooperative Board’s ability to not approve a sale due to the purchase price that they are presented with. This is a tricky situation, but one that requires diligence on the Board’s part to ensure that the decision they are making is based on market value and not on perceived value.
Before we get into the answer and noting how a Board can avoid running into an issue of wrongly turning down a sale for the purchase price, it is worth going over the protected classes in NYC and noting which factors are not to be considered when making a decision to allow a prospective purchaser pass through the board application process.
Presently in NYC, the protected classes (and these are groups of people who cannot be discriminated against or prevented from obtaining housing based on these factors) are: Age, Alien Status, Children (or childless state), Country of National Origin, Creed, Disability, Gender (including gender identity), Lawful Occupation, Marital Status, Military Status, Partnership Status, Race, Religion or Sexual Orientation.
Now that we have the factors that can’t be considered out of the way, we can talk about what can go into a decision to deny an applicant by a Cooperative Board. Financial instability is, of course, one of the main factors for not permitting a sale to go through. If the prospective purchaser is not able to carry the apartment’s mortgage + maintenance + other expenses, the Cooperative could be placing itself at risk for a default on maintenance and potentially creating a future of legal issues.
There is one other area that should be considered as well; purchase price. Some buildings will try and set an absolute floor, whereby they will alert all Shareholders that they will not accept any sales below a certain amount. This amount could be a per share amount, per square foot amount or if most apartments in the building are similar, they could create an absolute price. This will work only if the Board’s requirements are in line with the present market value of these apartments.
We have run into these situations before where a Board will deny based on a purchase price and the ruling is challenged by the outgoing Shareholder. To counteract this and to also avoid possible legal between the shareholder and the Board, we have taken the step to be proactive. We have advised our Boards that it is in their best interests to hire an independent appraiser to come into the apartment and work up a full appraisal on behalf of the Board so that they can get a sense of the real world market value of the apartment.
An example of how this will work out in the Board’s benefit is an apartment that is under contract for $200k and they feel that the apartment is worth $250k. An appraisal is ordered for the Board and it is actually shown to be $250k. We can then bring that back to the Shareholder to show that we have these findings and we can work it out with the Shareholder and prospective purchaser to raise their contracted price or they can back out of the sale as is if they both cannot meet the new parameters.
Although this approach sounds like the ideal solution, it can have the opposite effect as well, so Boards should be careful and use judgement when they are ordering these appraisals. The flip-side of the equation is that an apartment has the possibility of appraising for lower than the stated contractual price and in that case, the argument that the apartment was selling for below the market value would be thrown out in the courts should a sale be denied based on those factors and then challenged.
Cooperative Board of Directors have to be realistic when dealing with the sales within the building and this is a great tool that could be used on a case by case basis to ensure that the units in the building are being sold at market value and are helping to preserve the comps in the building. Of course, like any other issue in a Cooperative, a little leeway will have the be given from time to time and each board, while trying to preserve their value, should also be using common sense to not hamper the transactions in their building.
A member of the forum of Habitat Magazine (www.habitatmag.com) posted that her current agent neglected to pay their water bill and now penalties and late fees were being applied. The poster wanted to know if the money that the building is out would be collectable from the current agent.
Mark Levine of Excel Bradshaw Management Group, a NYC property management firm explains a solution to how to avoid this from happening in the future in any building and also gives an insight into a real world scenario that he has encountered with the same issue.
Should the Board try and recoup the losses? Yes, but in order to collect they may have to go to legal with the property management firm and weighing the cost of legal vs. the outstanding fines and penalties will shape their decision. The real question is; will they keep their current firm or search for a new one?