Litigation

Recent reports about social media trends encouraging individuals to exploit “squatter’s rights” laws are raising concerns for property owners. It’s crucial to understand this complex issue and proactive steps landlords and associations can take.

The reason is a legal loophole that gives would-be trespassers the right to stay in possession if they only stay in a property long enough to claim legal residency — otherwise known as “squatter’s rights.” In New York City, it’s only 30 days of living at a property.

So a homeless migrant just has to stay below the radar for 30 days and then the property owner has to take them to Court to have them legally removed. The process can be complicated and takes a long time. Unlike a known tenant, the squatters are anonymous in most cases and have to be served and then usually they won’t show up in Court. After multiple adjournments which the Courts routinely afford tenants who don’t appear, a property owner will get a default judgment of possession and eviction. Then, a lockout by a marshal has to be scheduled and occur. If the squatter shows up in Court and argues against the eviction, they might be able to steer the proceeding to a trial which adds time to the process. It is extremely frustrating to property owners and now influencers are trying to rally migrants to find abandoned property and squat to take advantage of our system which protects people who trespass and take possession of the property of others.

Proactive Steps for Property Owners

• Regular Monitoring: Frequent inspections of vacant properties help identify potential squatters early, before they establish strong legal claims. With all the news around this issue, if you have a property, get to it quickly now and make sure you aren’t already a victim of squatting.
• Secure the Property: Board up windows, keep utilities disconnected, install alarms, and maintain overall good condition to deter squatting.
• Documentation: Meticulous records of ownership, property upkeep, and lack of permission for occupancy strengthen your legal case.
• Time is of the Essence: The moment you suspect a squatter, consult with an attorney specializing in landlord-tenant law. Delays work in the squatter’s favor.

Challenges for Condos & HOAs

In the condominiums and homeowners associations that we represent, squatting happens to owners and because the association doesn’t own the property, it is difficult to address the squatting. Coops are a different form of ownership where the coop owns the building, so it can take action as the owner against squatters. There are tactics that experienced counsel can take for the boards.

What Condo & HOA Management and Owners Can Do:

1. Check Governing Documents:

• Bylaws/Rules: Look for provisions on unit owner responsibilities for vacant units, security measures, or authority granted to the board in exceptional circumstances.
• Lien Authority: Investigate if the association has a lien for unpaid assessments that could form the basis for a foreclosure action, which might indirectly resolve a squatting issue.
• Consider amending the governing documents to give the association more rights in these squatting situations.

2. Support the Owner:

• Notify & Advise: Alert the unit owner immediately and advise them to seek urgent legal counsel specializing in eviction proceedings.
• Enforce HOA Rules: If the squatter is causing disturbances violating HOA rules, fines or other sanctions against the unit owner may add pressure to act.
• Security: Consider enhancing association-wide security to deter squatting.
• Bring a Nuisance Injunction Action: The association usually has authority to bring lawsuits to abate nuisance conditions or rule violations. If so, the association may be able to commence suit to stop nuisances or violations by the squatters which may pressure them to leave.

A brand new Appellate Court decision underscores condo boards’ duty to act in good faith when residents report violations of building rules and regulations. In the case of Bacharach v. Board of Managers of the Brooks-Van Horn Condominium, the board faced legal action after years of alleged inaction regarding excessive noise complaints. The New York Court which oversees the trial courts in Manhattan and the Bronx, refused to dismiss the case against the board and clarified that property managers and condo boards cannot merely leave it to owners to address their own owner-to-owner complaints and the board has to act in good faith when receiving a complaint that an owner if violating the rules.

Case Summary

• Residents complained about unreasonable noise from a neighboring unit due to unapproved flooring installation.
• Despite repeated requests over several years, the board didn’t adequately investigate or enforce the Condo’s noise rules.
• Frustrated residents sued the board for breach of duty and sought an injunction to address the noise issue.

Court Ruling

• The court denied the board’s motion to dismiss, determining:
  • The Condo’s bylaws are ambiguous as to whether the board has discretion to refrain from acting upon complaints of rule violations.
  • The board’s inaction may not be covered by the well-established business judgment rule, which requires actions in good faith for the benefit of the community.
  • “The alleged multiyear gap between plaintiffs’ first complaint and the board’s first action in response to the complaints suggests that the board may not have acted in good faith.”

Takeaways for Condo Boards & Property Managers

1. “Discretion” Doesn’t Mean Inaction: While boards have flexibility in enforcement, ignoring legitimate complaints can be seen as a breach of duty.
2. Document Clarity Matters: Review your bylaws and rules to ensure they clearly define the board’s authority and enforcement responsibilities.
3. Good Faith Response Is KEY: Taking complaints seriously, even if your ultimate ruling favors the accused party, shows you’re fulfilling your role.
4. Timely Action Builds Trust: Promptly addressing potential violations can prevent issues from escalating and damaging resident relations.

Proactive Steps

• Establish and Follow Complaint Procedures: Have a clear process for documenting, investigating, and responding to complaints.
• Regular Bylaw Review: Ensure your rules remain enforceable and fair.
• Seek Legal Guidance Early: Advice from an attorney specializing in condo law can help you navigate complex disputes.

Here is the decision.

Could your condo bylaws save you from a costly lawsuit? A recent Brooklyn court decision highlights the critical role bylaws play when unit owners and their Board of Managers clash.

Case Background

• Plaintiffs (unit owners) alleged negligence by the Condominium Board and individual members in addressing water damage within their unit.
• The Board argued that the condo’s bylaws provide personal liability protection to board members.

Key Legal Principles

• Business Judgment Rule: Courts generally defer to condo board decisions made within their authority and in good faith. Plaintiff must demonstrate fraud or self-dealing to overcome this protection.
• Condominium Bylaws: These form a contract between the board and unit owners. Bylaws often include provisions specifically limiting individual liability of board members for actions taken in their official capacity.

Court’s Ruling

• Negligence claims against individual board members were dismissed due to protections under the condominium bylaws.
• Board-level claims (breach of duty, negligence) remain pending.
• Additional rulings denied summary judgment for both sides, highlighting the factual issues still in dispute.

Takeaways for Boards & Property Managers

1. Bylaws as Safeguards: Well-drafted bylaws offer substantial protection in lawsuits alleging negligence or breach of duty, provided board members acted within their authority and in good faith. Periodic review of bylaws is essential.
2. Fiduciary Responsibility: The board still maintains a duty of care towards the condominium property and unit owners. Neglect or willful disregard of this duty may expose the board as a whole to liability.
3. Proactive Maintenance: Address potential issues (e.g., water leaks) promptly to minimize damage and mitigate the risk of disputes escalating to legal action.
4. Thorough Documentation: Maintain meticulous records of board actions, maintenance, and owner communications. This serves as evidence of responsible decision-making.
5. Discovery Compliance: Non-compliance with discovery procedures can hinder your defense. Understand the obligations from counsel regarding the preservation and sharing of case-relevant information.

Here is the decision (Szymczyk v. Board of Managers of 363 16th Street Condominium).

The recent case of Board of Managers of the 48-54 West 138th Street Condominium v. Flora Burdock highlights the complexities that arise when an individual unit owner’s behavior impacts the health, safety, and well-being of a condominium community. In this case, the condominium board sought legal intervention to address a severe hoarding situation within Ms. Burdock’s apartment.

The Case at a Glance

The plaintiff, the condominium’s board of managers, alleged that the defendant, Ms. Burdock, had created a hoarding situation so severe that it posed safety risks and generated complaints from other residents. The board presented evidence of potential fire hazards, health code violations, and unpleasant odors emanating from the unit. After repeated attempts to work with Ms. Burdock failed, the board sought and received a court order compelling the defendant to grant access for cleanup.

Key Takeaways for Condominium Boards and Residents

This case underscores several important points:

• Condominium Bylaws: Condominium governing documents often contain provisions that give the board authority to enforce rules and regulations designed to protect residents’ safety and preserve the value of the property. These bylaws likely include clauses about maintaining units and common areas in a sanitary and safe condition.
• The Power of Legal Intervention: When communication and attempts at resolution fail, condominium boards have the right to pursue legal action to address problems like severe hoarding. Courts can intervene to protect the interests of the larger community.
• Balancing Rights: While individual residents have ownership rights, these rights must be balanced against the collective rights and well-being of the community. Creating unsafe conditions or significant disturbances violates the rights of other owners to reasonably enjoy their homes.

Preventive Measures

Ideally, issues like hoarding should be addressed before they escalate and require legal action. Proactive measures by condominium boards can include:

• Clear Policies: Establish clear rules and regulations regarding sanitation, noise, and the proper use of units and common areas.
• Early Intervention: Address potential problems early by communicating with residents showing signs of difficulty in maintaining their units. Offer support resources if needed.
• Education and Awareness: Provide residents with information on fire safety and the potential consequences of behavior that could endanger others or create unsanitary conditions.

The Importance of Legal Counsel

Addressing complex issues such as hoarding necessitates careful analysis and the guidance of an experienced attorney. Navigating the legal nuances is essential to ensure compliance with housing laws, protect the rights of all parties, and achieve outcomes that benefit the entire condominium community.

Read the Court’s decision awarding a reimbursement of legal fees, but declining other relief sought by the condo in order to prevent future occurrences.

Coop, Condo, and HOA boards and their management should pay close attention to insurance coverage when faced with lawsuits. It’s not always a guarantee that insurance will cover all damages. A recent case ( E. S. et al – v. – Windsor Owners Corp. et al; NY Sup Ct, NY Co., Index No. 159133/2017) found a coop liable for lead poisoning in an infant resident, and the case is now entering the damage phase. This is a stark reminder that having general counsel advise on legal matters early on can make all the difference. Don’t wait until it’s too late. Here is a link to the court decision (https://www.nycourts.gov/reporter/pdfs/2022/2022_34688.pdf) which was just upheld on appeal.