Page 11 - CooperatorNews July 2021

COOPERATORNEWS.COM
COOPERATORNEWS —
JUNE 2021
11
attorneys lawgapc.com
@
www.lawgapc.com
NORTHERN
NEW JERSEY
973-366-1188
CENTRAL
NEW JERSEY
732-514-6601
SOUTHERN SO
NEW JERSEY
856-533-2379
NEW YORK
212-374-9790
PENNSYLVANIA
973-366-1188
ATTORNEYS AT LAW
▶
Wills, Trusts and Estate Law
▶
Municipal Law
▶
General Litigation
▶
Commercial Law
▶
Business Startups
▶
Community Association Law
▶
Landlord Tenant Law
▶
Land Use and Zoning Law
▶
Disability Law
▶
Real Estate Law and Closings
Experienced attorneys providing the right
moves towards achieving your endgame
STRONG ADVOCATES
LISTEN ATTENTIVELY
WORK RELENTLESSLY
RESOLVE CONFLICT
MACKOUL RISK SOLUTIONS
Less than
10%
of community
associations have proper coverage
in the event of a breach.
www.mackoul.com
Is your association covered
for a cyber attack?
THE AVERAGE
COST OF A DATA
BREACH IS $3.86
MILLION AS OF 2020.
*
*
FORBES.COM
These alarming
cybersecurity statistics
are a call to take risk
management more
seriously.
CYBER INSURANCE
There is a hacker attack every
39
seconds.
Phishing attacks account for more
than
80%
of reported security
incidents.
MACKOUL RISK SOLUTIONS
Are you keeping up with safety
measures to protect your HOA’s
sensitive data?
Contact Mackoul today
to help reduce your
association’s risk!
25 Nassau Lane
Island Park, NY 11558
516-431-9100
www.mackoul.com
thority or acted in bad faith, it will not defer
to the board’s decision, and may rule in favor
of the shareholders or unit owners and grant
some or all of the relief they are seeking.”
“Th e Business Judgement Rule,” explains
Schechter, “presumes that a director or an
offi cer acted appropriately and in the inter-
ests of the cooperative or condominium. Th e
main objective of the rule is to allow these
directors and offi cers to make business deci-
sions without the constant fear of legal reper-
cussions. According to the Business Judge-
ment Rule, board decisions will not be second
guessed by the courts, and will stand, when
made with the proper exercise of the board’s
business judgement, in good faith and with-
out self-dealing or discrimination.”
A Case in Point
According to Cohen, “Th e Business Judge-
ment Rule prohibits judicial inquiry into the
enforceability of house rules promulgated by
condo and co-op boards, as long as the board
acts within the scope of its authority, in good
faith, and in the exercise of honest judgement
in the lawful and legitimate furtherance of
condo or co-op purposes.”
Greenstein cites a pertinent example: “In
order to charge shareholders a transfer or fl ip
tax upon the sale of their apartments, the law
requires that such provision be contained in
the co-op’s proprietary lease. If such provision
is
not
in the lease, and in order to amend the
provisions of a proprietary lease, the consent
of shareholders owning at least two thirds—
the percentage may vary—of the issued and
outstanding shares of the co-op must be ob-
tained. A number of years ago, numerous
boards of co-ops that didn’t have transfer tax
provisions in their leases passed board reso-
lutions to enact a transfer fees—but didn’t
obtain the consent of the shareholders. Th e
resolutions provided for the tax to be paid
by shareholders to the co-op as a condition
of selling and transferring their apartments.
Th e shareholders paid the tax in order to
close on the sale of their apartments. What
followed was the commencement of numer-
ous legal actions against these co-op boards,
wherein the courts determined that these
boards failed to obtain the required consent
of the shareholders—thereby rendering the
transfer tax unenforceable and ruled that all
shareholders who paid the tax within a cer-
tain time period receive a full refund of the
money they paid, plus interest.”
Th e lesson of the story? Be prudent and
follow the law to the letter.
n
A J Sidransky is a staff writer/reporter for
CooperatorNews, and a published novelist.
LAWS VS. BYLAWS...
continued from page 10
an instrument to test at the 0.5 level—and to
some in the industry, this sounds like NYC
will offi cially change its action level from 1.0
to 0.5 mg/cm2 for all lead-based paint re-
quirements—though we don’t know when.
Th is raises some big questions: when do we
inspect our units, if the tests are going to be
potentially invalidated? What does this mean
for property management in New York City?
How does this aff ect the apartment units that
have already been tested, and what does this
mean moving forward? Based on our knowl-
edge and research here is what we recom-
mend:
Technically the clock has been ticking
since August 9 of last year. Start with iden-
tifying those units with children 5 years of
age or under and have those units tested for
lead-based paint soon! We are not aware of
any COVID-related extension of compliance
or easing of these newest lead law require-
ments, and the deadline is coming fast. As for
those units that have already been addressed
at the 1.0mg/cm2 standard, based on current
conversation, you will likely have to test them
again upon turnover if/when the threshold
goes to 0.5 mg/cm2.
Be Ready So You Don’t Have to Get
Ready
HPD is now obligated to perform 200
property audits per year. Make sure all of your
records are in order! Should HPD randomly
audit you for an elevated blood lead level
found on your property, a resident complaint,
or because HPD is already on site, and you
do not have the appropriate required regula-
tory lead paint related documents, HPD will
begin to investigate more deeply, and poten-
tially issue violations. Th is link off ers a clear
list of regulatory expectations or call author
for guidance: https://www1.nyc.gov/site/
hpd/services-and-information/lead-based-
paint.page
To reiterate: I strongly recommend NYC
property managers and landlords familiarize
or re-familiarize themselves with the current
NYC HPD & DOHMH requirements if their
property is subject to these lead-based paint
regulations. If you are not extremely confi -
dent that your property or properties are in
compliance, begin a lead inspection program
of your portfolio of pre-1960 properties soon-
er rather than later—especially those units
where children age 5 or under reside.
If you need assistance with any or all of
these items, reach out to an environmental
lead-based paint consultant who can accu-
rately and clearly explain where you need to
be through all of these regulatory changes
and processes, and provide the knowledge
and step-by-step guidance to get your prop-
erties into compliance.
n
Melissa Guagenti is Executive Director of
LEW Corporation, and works with clients to
prepare and assist with contracts and timely
scheduling of their environmental needs. www.
LEWcorp.com.
NYC LEAD PAINT...
continued from page 1