In the high-stakes world of New York commercial real estate, the “Good Guy Guaranty” is often viewed as a tenant’s ultimate safety net. However, a recent decision by the New York Supreme Court, 387 Park S. L.L.C. v. Schulman (Feb 11, 2026), serves as a critical reminder that even the strongest guarantees can be limited by bankruptcy proceedings and the specific mechanics of a “vacate date.”
Landlords need to ensure their protections are ironclad and tenants need to understand the limitations of these provisions.
The Case at a Glance
The landlord (387 Park S. L.L.C.) sought over $8.8 million in unpaid rent and damages from two individual guarantors after the tenant, a restaurant group, defaulted on a lease with annual rent exceeding $2 million.
The landlord argued that because the tenant failed to provide a required 120-day notice of its intention to vacate, the guarantors should be on the hook for the remainder of the lease term. The court, however, ruled that liability was limited only to the date the premises were actually surrendered—largely because a bankruptcy judge had terminated the lease by operation of law.
Key Takeaways for Landlords and Property Managers
1. Bankruptcy Can “Clip” Your Guaranty
One of the most significant aspects of this ruling is the court’s deference to the bankruptcy stay and subsequent lease termination. Even though the “Good Guy” requirements (like the 120-day notice) weren’t met, the court held that the landlord could not recover for the entire lease term against the guarantors once the bankruptcy judge terminated the lease.
Management Tip: When a tenant enters bankruptcy, don’t assume your guaranty covers the full term of the lease. You must move quickly within the bankruptcy proceedings to establish the “Vacate Date” as early as possible to quantify your claim.
2. The “Defenses Waived” Clause is Your Best Friend
The landlord won on the issue of liability because the guaranty included a clause stating the defendants “waive all defenses other than payment in full.” This prevented the guarantors from blaming the landlord for construction delays or delivery issues to avoid paying.
Management Tip: Guaranties should be reviewed to see if they contain a broad waiver of defenses. As seen in this case, it allows the court to grant summary judgment on liability quickly, moving the fight straight to the “how much” phase rather than “if” they owe.
3. Signature Verification Still Matters
One defendant tried to claim her signature on a lease amendment was a forgery. While the court dismissed this (noting she had verified the signature in a previous lawsuit), it highlights a common delay tactic.
Management Tip: For high-value commercial leases, notarized signatures can turn a “forgery” defense from a potential headache into a non-starter.
4. The “Vacate Date” Ambiguity Trap
The court ordered a trial specifically to determine the exact date the tenant left (the “Vacate Date”). The parties were arguing over a window of just a few days/weeks, but at $2 million a year, every day matters.
Management Tip: When a tenant vacates—especially under a court order or bankruptcy—management should document the surrender immediately. Take photos, change the locks, and issue a formal “Notice of Re-entry” to cement the vacate date in the record.
How Experience Real Estate Counsel Can Protect Your Portfolio
The Schulman case proves that even with a multi-million dollar lease, a landlord’s recovery can be limited by the intersection of bankruptcy law and the specific language of a guaranty. To protect yourself, your management team must be disciplined in its documentation and aggressive in its legal positioning.
Here’s the case if your interested in an all the details ()
A recent decision from the Supreme Court of New York, Appellate Division, Second Department, in Board of Managers of Mountainside Hills Condominium II v. Pantaleone, provides important guidance and reassurance for condominium boards in New York seeking to enforce settlement agreements against delinquent unit owners. The Appellate Division affirmed the Supreme Court’s denial of the defendants’ motion to vacate a clerk’s judgment, ultimately upholding the condo board’s successful enforcement of a settlement stipulation for unpaid common charges. This case highlights the importance of strict adherence to contract terms and clarifies the application of the New York CPLR regarding service by mail.
Key Facts of the Case
The case began with the Board of Managers suing the unit owners (the defendants) to recover unpaid common charges and related fees.
The Stipulation: The parties entered into a so-ordered stipulation of settlement that required the unit owners to make installment payments to satisfy the agreed-upon amount.
The Default Provision: The stipulation specifically provided that if the owners failed to make any payment, the Board had the right to seek the entry of a judgment.
The Cure Requirement: Crucially, before seeking judgment, the stipulation required the Board to first serve the owners with a notice to cure. This notice had to be sent via:
Email to the owners’ attorney.
First-class mail directly to the owners.
The Board could seek judgment only after seven days elapsed following delivery of the notice through both means of service.
The Failure to Pay: The unit owners failed to make an installment payment due on November 1, 2019.
The Board’s Action: On November 7, 2019, the Board sent the required notice to cure via email to the owners’attorney and via first-class mail to the owners.
The Judgment: After the owners failed to cure the default, the Board submitted a proposed judgment, and a clerk’s judgment of $78,111.02 was entered on November 20, 2019.
The Court’s Ruling and Key Takeaways
The unit owners later moved to vacate the judgment, claiming they did not receive the notice to cure. However, theAppellate Division rejected their argument, basing its decision on well-established legal principles regarding proof of mailing and contract enforcement.
1. The Rebuttable Presumption of Receipt by Mail
The Court reinforced the powerful legal presumption regarding service by mail under New York law:
Proof of Mailing: Under New York law, submitting a properly executed affidavit of service creates a rebuttable presumption that the item was received by the addressee.
CPLR 2103(b)(2) Extension: The Appellate Division specifically applied the five-day extension provided by CPLR 2103(b)(2). Because the Board’s affidavit of service established the notice was mailed on November 7, 2019, the owners were presumed to have received it on November 12, 2019 (five days after mailing).
Denial is Not Enough: The Court held that the owners’“mere denial of receipt was insufficient to rebut that presumption.”
2. Strict Adherence to the Contract
The Court treated the stipulation of settlement as a contract, enforceable according to its terms.
The stipulation required the Board to wait seven days after delivery before seeking judgment.
Since the presumed date of receipt was November 12, 2019, the Board was permitted to seek judgment seven days later, on November 19, 2019.
By submitting the proposed judgment on November 19, 2019, the Board complied with the terms of the stipulation, and the judgment was correctly entered.
Actionable Advice for Condo Boards
This case serves as a vital blueprint for New York condominium boards when negotiating and enforcing settlement agreements for common charge arrears.
1. Be Meticulous in Drafting Stipulations
Define “Service”: Ensure your stipulations clearly and unambiguously define the method and date of service for a notice to cure. Include multiple, verifiable methods such as both certified and first-class mail, or email to a specific address, as the Mountainside Hills Board did.
Specify the “Cure Period”: Clearly state the exact cure period (e.g., seven days) and, critically, when that period begins (e.g., “seven days after delivery” or “seven days after the presumed date of receipt”). If you can omit a cure period, it is better to do so.
2. Follow Service Requirements Exactly
Affidavits are Essential: Always obtain and retain a properly executed affidavit of service when mailing a notice to cure. This is the evidence needed to create the powerful legal presumption of receipt, as a simple denial by the owner will not defeat it.
Account for the 5-Day Extension: When calculating the deadline to seek judgment, remember that New York’s CPLR 2103(b)(2) adds five days to the mailing time for court-mandated periods. The Board in this case correctly calculated the date of presumed receipt.
3. Enforce Judgments Promptly
A stipulation of settlement is a contract, and when the unit owner breaches, the Board is entitled to enforce the agreed-upon remedy.
As long as the Board can prove it strictly followed all notice and timing requirements in the stipulation, a court is likely to enforce the judgment and uphold the collection efforts against the delinquent unit owner.
Condominium boards should work closely with experienced legal counsel to draft ironclad settlement agreements and meticulously document every step of the notice process to ensure they can swiftly and successfully enforce them in the event of a default. Here’s the Court’s decision.
Community association boards, whether governing condominiums or cooperatives, bear the responsibility of maintaining community harmony, enforcing governing documents, and safeguarding both the financial stability and reputation of their associations. This duty faces its greatest test when a single, highly disruptive unit owner threatens the community’s well-being. The recent New York case, Board of Managers of Two Waterline Square Condominium v. Botach, exemplifies the difficult choices facing condominium boards when dealing with allegedly egregious owner conduct—and illustrates how aggressive legal action, while sometimes necessary, can expose associations to significant public scrutiny and legal risk.
The Two Waterline Square Conflict: A Case Study in Condominium Management
The lawsuit filed by the Board of Managers of Two Waterline Square Condominium against Jacob Botach (aka Rabbi Shmuley Boteach) and Deborah Botach originated from a dispute over $1,420 in rental and cleaning fees, plus late charges, for the unauthorized use of a common room in May and September 2024.
The conflict escalated dramatically when Defendant Botach refused to pay the fees, claiming the Board’s enforcement constituted anti-Semitism because one unauthorized use was for a memorial service honoring a victim of the October 7, 2023 Hamas attack. According to the Board’s allegations, Botach subsequently launched a public campaign against the association, utilizing emails to unit owners and social media posts (reaching his over 900,000 followers) that contained what the Board characterizes as “hyperbolic, defamatory, and frankly offensive” content. The complaint details three primary legal claims:
Defamation: Botach allegedly likened the $710 fee to historical persecution, including the Holocaust and Nazi Germany forbidding Jewish funerals, and called the Board “corrupt” and “antisemitic”.
Harassment/Nuisance: The complaint details Botach’s alleged harassment of Board members and building staff, including shouting at staff in the lobby, accusing them of “illegal activity and corruption,” and threatening “we are coming after you big time”.
Breach of Contract: Failure to pay the common room fees and associated late fees, which constitutes a material breach of the Condominium Documents.
The Board seeks not only the unpaid fees but also a Permanent Injunction to stop Botach from continuing his disruptive behaviors and publishing allegations of religious animus, as well as Exemplary Damages for defamation.
The Critical Distinction: Condominiums vs. Cooperatives
Understanding the fundamental differences between condominium and cooperative governance structures is crucial for boards contemplating litigation. These structural distinctions significantly impact both available remedies and strategic considerations.
Feature
Cooperative (Co-op)
Condominium (Condo)
Ownership
Shareholder in a corporation; holds a proprietary lease.
Owner of the unit (real property); holds a deed.
Relationship
Landlord-Tenant
Owner-Association
Primary Remedy
Eviction. The proprietary lease allows the board, in extreme cases, to terminate the tenancy of a disruptive shareholder.
Injunction & Foreclosure. The board must rely on remedies of property owners, such as filing a lien for unpaid charges and pursuing foreclosure or seeking injunctive relief for nuisance.
This fundamental difference in ownership structure creates distinct challenges for condominium boards. Unlike cooperative boards, which can leverage the landlord-tenant relationship to pursue eviction as an ultimate remedy, condominium boards must rely on remedies available to property owners dealing with other property owners. This limitation typically requires pursuing more expensive, time-consuming, and publicly visible litigation—including foreclosure actions for unpaid assessments or, as demonstrated in the Botach case, claims for private nuisance, defamation, and injunctive relief.
The Double-Edged Sword: Legal Action and Liability Exposure
While a board must act to stop an owner whose conduct interferes with the quiet enjoyment of other residents, pursuing a high-profile case like Two Waterline Square v. Botach comes with serious risks:
1. Public Scrutiny and Damage to Property Values
High-profile litigation, particularly cases involving public figures and inflammatory allegations such as discrimination claims, can severely damage a community’s reputation and market appeal. Properties in communities perceived as contentious, financially unstable, or poorly managed typically experience decreased buyer interest and reduced market values.
Financial Impact: Litigation can result in high legal fees, which may require special assessments or increases in common charges, making units less attractive to buyers. A protracted legal battle creates financial uncertainty, which can make it difficult for buyers to obtain financing, further reducing the pool of potential purchasers and decreasing property values.
2. Risk of Counterclaims and Board Liability
An aggressive lawsuit often invites counterclaims from the defendant, which can expose the board and individual directors to liability, even if they acted in good faith. Directors and Officers (D&O) insurance is critical here, as it typically covers the legal defense costs associated with defending against harassment and defamation allegations.
In consideration of the defamation claims asserted by the Board against Defendant Botach, it was crucial for the board to have considered the potential for Strategic Lawsuit Against Public Participation (SLAPP) counterclaims by Botach against the Board. Given Botach’s public figure status and his substantial following, the Board’s defamation claims may be perceived as an attempt to stifle his exercise of free speech. This raises the risk of SLAPP counterclaims, which, if successful, could lead to the dismissal of the Board’s defamation claims and the imposition of significant legal fees and penalties against the Board. Therefore, the Board should have carefully evaluated the merits of its defamation claims before asserting them and considered the potential ramifications of SLAPP statutes, which are designed to protect individuals from legal actions intended to chill their First Amendment rights.
Conclusion
The Two Waterline Square case illustrates the challenging position condominium boards face when traditional enforcement mechanisms prove insufficient to address disruptive owner behavior. Unlike cooperative boards with eviction remedies, condominium boards must carefully weigh the costs and risks of public litigation against the imperative to protect community interests. Before pursuing aggressive legal action, boards should conduct thorough cost-benefit analyses that consider not only the immediate dispute but also potential reputational damage, financial exposure, and the precedent such action may set within the community. The board’s attorney should take the board through this evaluation in advance of such aggressive and expensive and consequential legal action.
Effective community governance requires boards to maintain consistent, transparent, and legally compliant enforcement practices while fully understanding their structural limitations. When confronting egregious owner conduct, boards must develop comprehensive strategies that address immediate concerns while minimizing long-term risks to the community. This includes ensuring adequate Directors and Officers insurance coverage, consulting with experienced counsel, and carefully documenting all enforcement decisions. While taking a principled stand may sometimes be necessary to fulfill fiduciary duties, the strategy must be carefully calibrated to protect—rather than inadvertently harm—the community the board serves.
As a board member or property manager of a condominium or cooperative association in New York City, you’re often dealing with the complexities of neighboring buildings needing to protect or access your building in order to perform work on their own building. Situations frequently arise where access to your building, or granting access to an adjacent building, is necessary for essential maintenance, repairs, or protective measures. This often involves the granting or receiving of a license, a process that demands careful consideration to protect your building’s interests. This article explores the legal landscape surrounding these inter-building licenses in NYC, offering guidance on how to navigate these situations effectively.
Why Licenses Are Necessary
In densely populated NYC, buildings often share party walls, or rely on each other for structural support or access to utilities. Whether it’s waterproofing a shared wall, repairing a damaged facade that impacts a neighboring building, or accessing your building to install protective scaffolding during adjacent construction, formalizing these arrangements with a license agreement is crucial.
Key Considerations for License Agreements (When Granting Access):
When your building is granting access to an adjacent building, a well-drafted license agreement is paramount. Here are some of the key elements:
Scope of Work: Precisely define the work to be performed by the neighboring building, including detailed descriptions, specifications, and architectural drawings if necessary. Limit the scope to only what is absolutely essential.
License Consideration: Specify consideration that is going to be required for your building to give a license to your neighbor. Sometimes fees are warranted and other times just being neighborly is the way to go because one day you may need a license from that neighbor.
Duration of Access: Specify exact dates and times, including provisions for extensions only with written approval from your board. Strictly limit the timeframe to minimize disruption.
Responsibilities of the Parties: Clearly delineate who is responsible for what. Who will bear the cost of the work? Who is responsible for repairing any damage to your building caused by the adjacent building’s work? Who will oversee the work?
Insurance and Liability:Crucially, require the adjacent building to provide comprehensive insurance, including general liability, property damage, and workers’ compensation. Obtain certificates of insurance and ensure your association is named as an additional insured. A robust indemnification clause is essential, protecting your building from any claims arising from the access and the work.
Indemnification: This clause should be broad, covering any damages or injuries to persons or property arising from the adjacent building’s actions or inactions.
Restoration of Your Premises: The agreement must detail the obligation to restore your building to its original condition after the work is completed, including repairing any damage and cleaning the area. Include a process for inspection and approval of the restoration.
Security Measures: Address security concerns. Who will have access to your building? What security protocols will be followed?
Dispute Resolution: Include a mechanism for resolving disputes, such as mediation or arbitration.
Legal Counsel: Consult with legal counsel before granting any access. Protecting your building is paramount.
Key Considerations for License Agreements (When Receiving Access):
When your building needs access to an adjacent building, while some of the above points still apply, the focus shifts:
Necessity: Demonstrate the absolute necessity of the access to the neighboring building.
Least Intrusive Method: Explore all less intrusive alternatives before requesting access.
Reciprocity: Consider the implications of future reciprocal access requests from the neighboring building.
Negotiation: Be prepared to negotiate terms that are reasonable and protect the neighboring building’s interests.
NYC-Specific Considerations:
NYC Administrative Code: Be aware of relevant sections concerning building codes, regulations, and party wall agreements.
NYC Department of Buildings: Familiarize yourself with permit requirements and procedures.
NYC Housing Maintenance Code: For co-ops, understand the code’s implications.
Common Pitfalls to Avoid:
Verbal Agreements: Never rely on verbal agreements. Everything must be in writing.
Insufficient Detail: Vague agreements lead to disputes.
Inadequate Insurance: This is a major risk. Verify insurance coverage independently.
Unreasonable Demands: Avoid making unreasonable demands, as this can hinder negotiations.
Failure to Document: Thoroughly document the condition of both buildings before and after the work.
Best Practices:
Proactive Communication: Maintain clear communication with the neighboring building.
Professionalism: Maintain a professional and respectful demeanor.
Timely Execution: Execute the license agreement well in advance.
Record Keeping: Keep detailed records.
Conclusion:
Inter-building licenses in NYC require careful consideration. Protecting your building is the priority. By understanding the legal requirements, following best practices, and consulting with legal counsel, board members and property managers can navigate these complex situations effectively, minimizing risk and ensuring the long-term integrity of their building.
New York City’s skyline is dotted with condominiums, each housing a unique community with its own set of rules and challenges. Disputes often arise between condo owners and the boards of managers tasked with overseeing the building’s operations. These disputes can range from breach of contract claims to allegations of fraud and misrepresentation. This blog post examines a series of recent court decisions addressing a variety of legal issues arising in the context of New York City condominiums.
Breach of Contract and Construction Defects:
Several cases involved claims related to construction defects and alleged breaches of contract. In these instances, the courts analyzed the offering plans, purchase agreements, and other governing documents to determine the sponsor’s obligations and the unit owners’ rights.
In Board of Managers of 45 East 22nd Street Condominium v. 45 East 22nd Street Property LLC, the court considered claims of breach of contract and fraud in connection with the sale of a unit. The court ultimately denied the defendants’ motions to dismiss, allowing the case to proceed to discovery.
In Board of Managers of the Aston Condominium v. Building 389 LLC, the Appellate Division, First Department, addressed a case involving alleged construction defects and insufficient water heater warranties. The court partially dismissed the breach of contract claim related to construction defects due to a notice requirement in the offering plan. However, the court allowed the breach of contract claim based on the water heater warranties and the fraudulent conveyance causes of action to proceed.
In Board of Managers of the Blackfriars Condominium v. AG Ebenezer LLC, the court addressed a variety of claims, including significant construction defects, failure to preserve tax-exempt status for the church, and failure to honor financial commitments. The court dismissed several claims but allowed others to proceed, highlighting the complexity of legal issues that can arise in condominium development and management.
Piercing the Corporate Veil:
In Board of Managers of 135 West 52nd Street Condominium v. 135 West 52nd Street Owner LLC, the court addressed the issue of piercing the corporate veil to hold the sponsor’s principals personally liable for alleged construction defects. The court found the allegations insufficient to pierce the corporate veil, emphasizing the need for detailed and specific claims to hold individuals liable for the actions of a corporate entity.
Common Charges and Liens:
In Board of Managers of 25 Prince Street Condominium v. NYC Prince Holdings LLC, the Appellate Division, First Department, dealt with a dispute over unpaid common charges and a lien on a commercial unit. The court granted summary judgment to the board of managers on its claims for foreclosure on the lien, breach of contract, and attorneys’ fees. The court also declared that the roof was a general common element for which the defendant was responsible.
These cases provide a glimpse into the diverse legal issues that can arise in condominium disputes. They underscore the importance of carefully drafted offering plans, purchase agreements, and other governing documents. The decisions also highlight the need for boards of managers and unit owners to be aware of their rights and obligations under New York law.
In the case of HCJV 115 & 135 Hoyt Avenue Owner LLC v. Project Veritas, the Supreme Court of New York examined the legal principles of contract formation, part performance, and the parol evidence rule. The case involved a lease agreement between the plaintiff (landlord) and the defendant (tenant). The plaintiff alleged that the defendant breached the lease by failing to pay rent on time, while the defendant claimed that the parties had orally agreed to terminate the lease. The court, however, found that the defendant failed to provide enough evidence to prove the existence of an oral agreement to terminate the lease. If you reach an agreement, a handshake is just not enough. A well drafted agreement is worth its weight in gold (Bitcoin).
The court’s decision in this case highlights the importance of written agreements, especially in the context of real estate transactions. While oral agreements can be enforceable in some cases, they are often difficult to prove, especially when the terms of the agreement are disputed by the parties. In this case, the court emphasized that the lease agreement required any modifications to be in writing and signed by both parties.
Lessons to be Learned
The case of HCJV 115 & 135 Hoyt Avenue Owner LLC v. Project Veritas offers several lessons for parties to a lease agreement:
Put it in Writing and Sign it: Ensure that all lease agreements, and any subsequent modifications, are in writing and signed by all parties involved. This helps to avoid any disputes about the terms of the agreement.
Be Careful What You Say and Do: Avoid making any oral promises or representations about the lease agreement that are not reflected in the written document. Such promises can be difficult to enforce and can lead to misunderstandings and disputes.
Detailed Records: Keep detailed records of all communications and transactions related to the lease agreement, including emails, letters, and payment records. This can help to establish the terms of the agreement and the parties’ understanding of those terms.
Be Aware of the Risks: Understand that relying on oral agreements or part performance to modify a written lease agreement can be risky. If a dispute arises, the court may not enforce the modification if it is not in writing and signed by both parties.
Seek Legal Advice: If there is any doubt about the terms of a lease agreement, or if the parties wish to modify the agreement, it is important to seek legal advice from a qualified attorney. An attorney can help to ensure that the agreement is properly documented and that the parties’ rights are protected.
The case of HCJV 115 & 135 Hoyt Avenue Owner LLC v. Project Veritas serves as a reminder of the importance of written agreements and the risks of relying on oral modifications or part performance. By following the lessons from this case, parties to a lease agreement can help to avoid costly and time-consuming disputes.
What a confusing government we have. The First Circuit Court of Appeals which lifted the nationwide stay on the Corporate Transparency Act, just undid what it just did a few days ago, putting the nationwide stay back into effect until the Court hears all the arguments. Oral argument is not scheduled till March 25, 2025. The government, including the Courts, should be better than this. They are causing a ton of confusion for businesses and the professionals who service them.
For now, filing with FinCEN to comply with the CTA is going to voluntary again until the Court changes its mind yet again. Stay tuned for more.
District Judge Amos L. Mazzant of the Eastern District of Texas issued a preliminary injunction ordering that the entire Corporate Transparency Act (CTA) is enjoined nationwide and that the US government in enjoined from enforcing the BOI Reporting Rule (the final rule implementing the CTA and providing definitions and guidance for the statute) and the Jan. 1, 2025, compliance deadline. Judge Mazzant decided yesterday to reject the government’s motion to reverse himself. It’s difficult to cause a Judge to reverse himself, so the government moved the Fifth Circuit Court of Appeals to take emergency action and reverse Judge Mazzant.
The government’s motion to the Fifth Circuit is pending with a briefing schedule that could result in a decision around Christmas. The government asked the Court to render a decision by December 27th, but it’ll be up to the Court. The government asked for a complete reversal on the nationwide injunction by Judge Mazzant, or at least an order limiting the injunction to the parties involved in that case, or just the members of the organization involved in the case.
If the injunction is lifted by the Fifth Circuit, organizations will have to go back to complying with the CTA and its looming January 1, 2025 deadline. FinCEN has not indicated whether it will extend the deadline if the injunction is lifted.
We will keep you posted of developments. For now, although the nationwide preliminary injunction relieves the immediate obligation – i.e., right now – to file beneficial ownership reports with FinCEN, it would be prudent for non-exempt reporting entities that haven’t yet filed to continue to prepare for their report filing by continuing to gather all information and documents that the CTA requires. If it turns out that compliance is not required, then they don’t have to submit their report to FinCEN, but if they do and FinCEN does not give a reasonable time thereafter for compliance, then reporting companies don’t have to scramble at the last minute to comply before the hefty $591 a day fines kick in.
Here Judge Mazzant’s decision refusing to reverse himself and the government’s motion to the Fifth Circuit.
New York City recently passed Local Law 24, also known as the Fair Chance Housing Act, which prohibits housing discrimination based on criminal history. The law will go into effect on January 1, 2025.
The law applies to all housing providers, including co-ops, condos, and HOAs. It significantly impacts how these organizations conduct background checks and approve or deny applications.
Key Provisions of the Law
Limits on Criminal Background Checks: The law restricts when and how housing providers can conduct criminal background checks.
Individualized Assessment: Housing providers must conduct an individualized assessment of an applicant’s criminal history. This assessment considers the nature and severity of the offense, the time elapsed since the offense, and the applicant’s rehabilitation efforts.
Adverse Action: If a housing provider intends to take adverse action based on an applicant’s criminal history, it must provide the applicant with a written explanation of the reasons for the adverse action.
Impact on Co-ops, Condos, HOAs and their Managing Agents
Co-ops, condos, HOAs and their managing agents must comply with the Fair Chance Housing Act when reviewing purchase or rental applications. This includes:
Modifying application procedures: Co-ops, condos and HOAs must update their application procedures to comply with the law’s restrictions on criminal background checks.
Conducting individualized assessments: Co-ops, condos and HOAs must conduct individualized assessments of applicants with criminal histories.
Providing written explanations for adverse actions: If they decide to take adverse action based on an applicant’s criminal history, they must provide the applicant with a written explanation of the reasons for the adverse action.
Right of First Refusal
The law does not specifically address a condo or HOAs right of first refusal. It speaks in terms of refusing to sell, rent or lease and approving such like a coop approves a transfer of shares to a coop apartment. The law, however, includes a paragraph outlawing discrimination against an individual in the terms, conditions or privileges of the sale, rental or lease because of such individual’s criminal history. We expect an argument to be made that a condo board’s decision as to whether to exercise a right of first refusal concerning a sale or lease of a unit based on criminal history covered by the law, would be discrimination. So, coop, condo and HOA boards have to be careful in their application processes and decision making where criminal history is being considered and decided upon.
Recommendations for Boards and their Property Managers
Consult with an attorney: Boards and their property managers (who are also covered by the law) should consult with their attorney to ensure that their policies and procedures comply with the Fair Chance Housing Act.
Update application forms: Application forms should be updated to remove any questions about criminal history and criminal background checks should be performed after initial affirmative decisions are made and then a final decision can be made in compliance with the Act. If a denial of a transfer application or exercising of the right of first refusal is made without a criminal background check, then there is no need to even perform one and the decision can be relayed to the appropriate parties so that there is not even a question as to whether there was a violation of the Act.
Train staff and board members: Property managers and board members should be trained on the requirements of the Fair Chance Housing Act to make sure there is compliance.
The Fair Chance Housing Act is a significant change to New York City’s housing laws. Community association boards and their managers must take steps to comply with the law before it takes effect on January 1, 2025. Failure to comply could result in legal liability.
Last week, District Judge Amos L. Mazzant of the Eastern District of Texas issued a preliminary injunction ordering that the entire Corporate Transparency Act (CTA) is enjoined nationwide and that the US government in enjoined from enforcing the BOI Reporting Rule (the final rule implementing the CTA and providing definitions and guidance for the statute) and the Jan. 1, 2025, compliance deadline.
The US government filed a notice of appeal and yesterday filed a motion request to Judge Mazzant to stay the preliminary injunction because the government is appealing to the Fifth Circuit Court of Appeals and if Judge Mazzant doesn’t do so, the government provided that it would seek this relief today or tomorrow December 13, 2024, for a lift of the nationwide stay by the Court of Appeals.
We have explained that the trouble with not complying with the CTA is, what happens when the injunction is lifted and compliance is required before January 1, 2025. It does not appear based on the government’s actions that FinCEN will give an extension to comply before penalties kick in on January 1, 2025. It seems reasonable to do so, but not guaranteed based on FinCEN’s message that reporting companies can continue to comply if they want to.
We will keep you posted of developments. For now, although the nationwide preliminary injunction relieves the immediate obligation – i.e., right now – to file beneficial ownership reports with FinCEN, it would be prudent for non-exempt reporting entities that haven’t yet filed to continue to prepare for their report filing by continuing to gather all information and documents that the CTA requires. If it turns out that compliance is not required, then they don’t have to submit their report to FinCEN, but if they do and FinCEN does not give a reasonable time thereafter for compliance, then reporting companies don’t have to scramble at the last minute to comply before the hefty $591 a day fines kick in.
