Litigation

The court’s decision in 157 W 18 OWNER, LLC v. THE BOARD OF MANAGERS OF THE SLATE CONDOMINIUMS provides clarity on the interpretation of RPAPL 871 and the enforcement of Building Code requirements in construction-related disputes. The ruling underscores the importance of demonstrating a substantial encroachment and balancing equities when seeking injunctive relief for property disputes.

In a recent legal battle between 157 W 18 OWNER, LLC (the petitioner) and THE BOARD OF MANAGERS OF THE SLATE CONDOMINIUMS (the respondent), the court rendered a decision that has significant implications for property rights and construction regulations. The petitioner sought to compel the removal of a sidewalk shed erected by the respondent on a public sidewalk in front of the petitioner’s building. The court, however, denied the petitioner’s motion, granted the respondent’s cross-motion, and dismissed the converted complaint. This article explores the background, arguments, and rationale behind the court’s decision.

The petitioner, owner of a building at 157-159 West 18th Street in Manhattan, contested the placement of a sidewalk shed by the respondent, the owner of the adjacent building at 163-165 West 18th Street. The shed was erected as part of a Façade Inspection Safety Program (FISP) repair project initiated by the respondent. The petitioner claimed that the shed encroached onto the public sidewalk in front of its building, adversely affecting its use and the operation of a leased ground-floor restaurant.

Initially filed as a special proceeding under CPLR article 4, the court decided to convert the case into an action under RPAPL 871 in the interest of justice. The petitioner sought injunctive relief to compel the removal of the sidewalk shed, citing encroachment on its property. The respondent countered, arguing that the shed was necessary to comply with the Building Code, protecting pedestrians during the FISP repair work.

The court addressed several key points in its decision:

1. Conversion of the Proceeding:
   The court converted the special proceeding into an action, allowing for a comprehensive review of the matter. This conversion enabled the court to consider cross motions for summary judgment.
2. Encroachment Claims:
   The petitioner failed to establish a prima facie case that the sidewalk shed encroached upon its property. The respondent, through expert testimony, demonstrated that the shed was entirely on the public sidewalk and did not impede access to the petitioner’s building.
3. Building Code Compliance:
   The court recognized that the respondent was obligated by the Building Code to extend the sidewalk shed beyond its property line to ensure pedestrian safety during the FISP repair work. Compliance with these regulations justified the shed’s placement, even if it extended onto the public sidewalk.
4. Balance of Equities:
   The court considered the balance of equities, emphasizing that the benefit of compelling removal did not outweigh the harm to the respondent and the public. The petitioner failed to demonstrate a significant encroachment or harm justifying injunctive relief.

Read the decision here.

Condominium associations often deal with a variety of issues during the transition process from developer control to homeowner control. One common challenge is holding “sponsor members” accountable for problems that arise during the construction or sale of units. Sponsor members are typically developers, builders, or other entities that establish the condominium and retain a level of control during the initial phases. 

Under most state condominium laws, sponsor members owe certain legal duties to the association and unit owners. These duties relate to completing construction properly, providing adequate funding for reserves, and disclosing all relevant information about the property’s condition. If sponsor members breach these duties, the condominium association may have valid legal claims against them. 

There have been many cases across the country where condo associations have pursued legal action against sponsor members for construction defects, budget deficits, or incomplete turnover documentation.

In a recent case, we were able to tie up the sponsor with an injunction claim and motion from dissipating its assets. It is critical to hold the sponsor and its members responsible as early as possible before they transfer assets and liquidate the sponsor entity. Even if the sponsor can’t be stopped, associations can still go after the sponsor members and others who have responsibility.

For example, the Board of Managers the 443 Greenwich Street Condominium sued its sponsor’s members who were designated as board members of the condo during the control period. Like all board members, sponsor members have a fiduciary duty to act in the best interest of the condo and not the sponsor. The 443 Greenwich Street Condominium averred that the sponsor board members fraudulently passed on to the unit owners the costs of construction and maintenance disguised as condominium common charges, and that they deliberately cut corners when renovating the building by making the renovations in a manner departing from the operating plan and calculated to save the sponsor money. The Appellate Division First Department upheld the trial court’s refusal to dismiss the claims of breach of fiduciary duty against the sponsor board members. The Court held that the business judgment rule does not foreclose the cause of action for breach of fiduciary duty. At the pleading stage, the allegations are sufficient to overcome the business judgment rule, as plaintiff has alleged that the sponsor’s principals acted in bad faith and that their actions were tainted by conflict of interest and fraud. See the decision.

When problems arise, it is critical for condo boards to consult experienced legal counsel to review their options. An attorney can help determine if the sponsor member violated any legal duties and whether a lawsuit or settlement demand is warranted. The condo’s governing documents and state laws must also be carefully examined, as they may impact what claims are viable. With proper guidance, condo associations can potentially hold sponsor members financially accountable for their actions.

In the intricate realm of community associations, addressing the process of compelling a vote to remove a board is a crucial but often overlooked aspect. One of the primary challenges arises when the sitting board refrains from calling a special meeting, necessitating potential litigation funded personally by the owners or shareholders. In such scenarios, it becomes imperative for both the dissidents seeking change and the incumbent board to engage legal counsel, ensuring the association’s proper representation and protection.

A prevailing issue within associations is the absence of a clear mechanism for compelling a vote to replace the board when the existing leadership remains resistant to a special meeting. The default resolution often involves legal action, with the onus of funding such litigation falling on the individual owners or shareholders. This financial burden can pose a significant obstacle for those seeking change within the community.

For the sitting board, navigating through these challenges requires legal guidance to ensure that the association is not only properly represented but also shielded from potential vulnerabilities. Boards must recognize that while members may change, the entity remains, and the overall interests of the community need to be secured. Proper legal counsel becomes a cornerstone in safeguarding the association’s stability during periods of transition.

Dissidents advocating for a board change must understand the legal avenues available can empower dissidents to navigate the process more effectively and peacefully, appreciating that their own self interest may be important to them, but if they prevail, that self interest must be set aside and the board has a fiduciary duty to make decisions that are in the best interest of the community as a whole.

Regardless of the prevailing sentiments towards the current board, it is paramount that all parties involved, including incumbents, dissidents, and the professional management team, prioritize fairness and compliance with the organization’s bylaws and applicable laws. Fostering a transparent and equitable environment during this transition is crucial to maintaining the community’s reputation and ensuring a smooth evolution of leadership.

During periods of contention, when ownership interests are at stake, proper management and legal counsel play pivotal roles in guiding the organization through tumultuous times. The emphasis should always be on preserving the integrity of the community, creating an atmosphere where both dissidents and incumbents can navigate change without compromising the overall health of the association.

In the ever-evolving landscape of condo board dynamics, addressing the challenges of compelling a vote to replace the board requires a multifaceted approach. Engaging legal counsel, understanding the available resources, and prioritizing fairness are essential elements in ensuring a smooth transition that upholds the best interests of the community at large.

If your entity was created by the filing of a document with the secretary of state, including coops, HOAs and maybe condominiums, the federal government is requiring the reporting of personal identifiable information about certain of their beneficial owners. It’s called the Corporate Transparency Act (“CTA”) and the reporting is to the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of Treasury. The filing can be done electronically and the failure to do so has harsh penalties that coop, HOA and condo boards must avoid.

Reporting entities in existence prior to January 1, 2024, must file their initial report by December 31, 2024. So existing coop, HOA and condo boards have a year to report. Reporting entities created on or after January 1, 2024, but before January 1, 2025, will have 90 days to file their initial report. Any Reporting entity created on or after January 1, 2025, will have 30 days to file the initial report. FinCEN’s guidance and regulations are evolving and we would hope that FinCEN will provide further guidance as to whether coops, HOAs and condos must file and comply with the CTA.

The willful failure to report complete or updated beneficial ownership information to FinCEN, or the willful provision of or attempt to provide false or fraudulent beneficial ownership information, may result in a civil or criminal penalties, including civil penalties of up to $500 for each day that the violation continues, or criminal penalties including imprisonment for up to two years and/or a fine of up to $10,000. Senior officers of a reporting entity who fail to file a required beneficial ownership interest report may be held accountable for that failure.

Because New York coops and HOAs were created by the filing of a document with the secretary of state they are required to file and comply with the CTA. If a condo board is incorporated, it will be required to file and comply with the CTA as well, but it is not yet clear whether condos which are unincorporated associations in New York are required to file and comply. The safe bet is file and comply for now, but condo boards can wait for now until FinCEN provides some guidance.

Reporting requires the following: a) disclosures about its beneficial owners (as defined by the CTA); b) information about the reporting entity; and c) a certification that its report is true, correct, and complete.

Updated or corrected reports must be filed within 30 days of any change of information previously submitted to FinCEN about the beneficial owners or the reporting entity. 

The issue with community association entities that are required to report under the CTA is who are the beneficial owners that have to give personal information about themselves.

 Under the CTA, a beneficial owner is any individual who, directly or indirectly, either exercises substantial control over the reporting entity or owns or controls at least 25% of the ownership interests of a reporting entity. The regulation provides three specific indicators to determine if an individual has “substantial control:”

1. The individual serves as a senior officer of a reporting entity; or
2. The individual has authority over the appointment or removal of any senior officer or a majority of the board of directors (or similar body) of a reporting entity; or
3. The individual directs, determines, decides, or has substantial influence over important decisions made by a reporting entity.

Beneficial owners of coops, HOAs and condos will likely include the following:

1. Directors, managers, and certain key officers (as identified pursuant to the CTA) of the coop/HOA/condo;
2. Shareholders/members/unit owners who own 25% or more of the shares/common interest in the coop, HOA or condo; and
3. Sponsors of coops/HOAs/condos who remain in control of the entity or have at least 25% ownership therein.

Each beneficial owner must provide the following information in the filing with the FinCEN:

1. Full legal name;
2. Date of birth;
3. Residential street address; and
4. Unique identifying number contained in:
   • a valid passport,
   • government or tribal identification document, or
   • state-issued driver’s license. If an individual has none of these forms of identification, then a valid foreign passport may be used.

The unique identifying number must be accompanied by the name of the issuing jurisdiction and an image of the document from which the number was obtained.

Reporting entities must provide the following information about the entity:

1. Full legal name, as well as any trade or d/b/a names;
2. Street address for the principal place of business, if it is in the United States or the primary U.S. location where business is conducted;
3. Jurisdiction of formation for both foreign and domestic companies as well as the state or tribal jurisdiction where a foreign company first registers; and
4. TIN, such as an Employer Identification Number.

In navigating the evolving landscape of FinCEN guidelines, reporting entities must prioritize compliance with beneficial ownership reporting requirements. Staying informed, adhering to specified timelines, and ensuring accurate information submission are imperative to mitigate the risk of penalties. As FinCEN continues to refine its regulations, entities, including coops, HOAs, and condo boards, should remain vigilant for further guidance regarding whether they are covered by the CTA and their reporting obligations.

The NYC OSE has adopted final rules for Local Law 18 which coop, condo and HOA boards and their managing agents should become familiar. The rules cover the registration and requirements for short term rentals in NYC. But for coops, condo and HOAs that prohibit short term rentals, the rules provide a glimpse at the roadmap to registering their buildings with the OSE. This is a relief to boards of these associations which prohibit short term renting in their governing documents and have struggled with enforcement.

Section 21-09 of the rules covers the prohibited buildings list. The application on the OSE’s website seems to be opening for registration on March 6, 2023. The application will require the name of a natural person making the application, a phone number and email for the person, the address of the building, an explanation of the relationship between the owner and applicant and “any proof or documentation requested … to substantiate the request ….” The applicant must certify that the leases and other occupancy agreements prohibit short term rentals. The last requirement of “proof or documentation” is likely the more difficult one because we aren’t sure what the OSE will require. Associations that are professionally managed could have their managers make the application or it may be a board member doing so. The “proof or documentation” will likely be the association’s governing documents that prohibit or limit short term renting. For example, bylaws could say that rentals for less than a year are prohibited. We’ll have to see what the OSE requests and requires before adding an association building to the prohibited list.

The OSE plans to publish the list of prohibited buildings on its website and update it in real time. It is not clear if the OSE has a deal with AirBnb re making sure that it does not allow listings in buildings on the prohibited list. We’ll have to wait and see how this all pans out.

Here are the rules.