The recent case of Levy v. 103-25 68th Ave. Owners, Inc. offers some valuable insights for property managers and board members within cooperative housing communities.

In June 2018, the Levys commenced this action against the co-op defendants and the occupants of the neighboring apartment, alleging, inter alia, that the co-op defendants exceeded the scope of their authority, discriminated against them for having children, and acted in bad faith. 

The Business Judgement Rule

This rule affords a degree of protection to boards of directors when making decisions within the scope of their authority. Courts generally defer to board decisions if they are made:

• For the purposes of the cooperative community: Decisions should align with the overall well-being of the community.
• Within the board’s authority: Actions shouldn’t violate governing documents (e.g., bylaws, proprietary lease).
• In good faith: Board members must act without ulterior motives or personal gain.

Limits of Board Authority

The Levy case highlights that the Business Judgment Rule is not absolute but it can be used to insulate boards, along with their property manager agents, unless they

• Exceed their authority: Boards cannot take actions that contradict the cooperative’s governing documents.
• Act with discriminatory intent: Decisions cannot be based on factors like race, religion, familial status, or other protected characteristics.
• Show Bad faith: Self-interest, malice, or disregard for the community’s well-being can invalidate the protection of the Business Judgement Rule.

Best Practices

To avoid issues like management and the board did in the Levy case, it’s imperative that property managers and board members:

• Understand Governing Documents: Thoroughly familiarize yourselves with the cooperative’s bylaws, proprietary lease, and any other relevant rules and regulations.
• Document Decision-Making: Maintain clear records to demonstrate careful and informed processes behind decisions.
• Act Impartially: Treat residents fairly and avoid even the appearance of preferential treatment or discrimination.
• Prioritize Community Interests: Decisions should always prioritize the well-being of the cooperative community as a whole.

The Levy case underscores the importance of due diligence, fair treatment, and a commitment to serving the entire cooperative community. By being mindful of these principles, property managers and board members avoid liability for the entity and themselves personally. Here’s the decision.