Page 7 - NY Cooperator Expo April 2019

COOPERATOR.COM THE COOPERATOR — APRIL 2019 7 QUESTIONS & ANSWERS Legal Q A& Stock Certifi cate Problem Q I am a former board member who held the offi ce of secretary. I have a question pertaining a stock certifi cate. I signed a stock certifi cate regarding a shareholder (who died in 2010) that was approved by the previous board and issued in 2013, as a result of a stock request made in 2011, according to a lost stock affi davit. “Th e brother of the deceased sharehold- er was granted power of attorney in 2009. Since the shareholder’s death, they added an additional person—a niece–to the certif- icate. As we all know, the power of attorney is no longer valid aft er the person dies. “My concern is that the stock was is- sued to a deceased person, and that what was done could be construed as securities fraud? I want my name stricken from the stock and that the current board has the stock transfer done the correct way. Am I correct? —Need Th is Straightened Out A “Th e short answer to the question is that you cannot transfer property to a de- ceased person,” says Marc Luxemberg, an attorney with the New York City fi rm of Gallet Dreyer Berkey, LLP. “Th e deceased has no physical existence, as well as no legal existence. Th e rights of the decedent can, as a general rule, only be exercised by a court appointed fi duciary. “Accordingly, a stock certifi cate issued to a deceased person is a nullity, and conveys no rights. If, as it appears from the question, the stock certifi cate was in fact issued to a decedent and not to an executor or admin- istrator, it should be canceled.” Breaking Up Is Hard to Do Q My fi ancé and I share a co-op, and we are not getting along. I want out, but he doesn’t. Th e co-op is in both our names. So what would happen? Do we have to sell and vacate? Truth be told, he no longer wants to be with me. I want to sell because if I can’t have it; I don’t want him to have it. —Fiancee Uncertain Over Property A “A person holding and in possession of real property as a joint tenant or a tenant in common may commence an action seek- ing the court ordered partition and public sale of the property pursuant to NY RPAPL cooperative apartment and equal division to prevent this outcome, you should not va- Section 901(1),” says Leni Morrison Cum- mins, an attorney with the New York offi ce of Cozen O’Connor. “Even though coopera- tive shares are not technically real property quest upon the court to allow him an option partition, and many maintain their right (but rather personal property), case law to purchase the apartment before the unit to approve a sale even upon partition. So allows for the application of this section is put up for public auction. However, that before embarking on this path, the writer to cooperative shares. Th rough an action precedent was limited to a situation where should review the cooperative’s governing for partition, the writer will be able to ask one of the owners was the sole resident of documents. a court to order a sale of the jointly owned the apartment. Th erefore, if you want to try of the net proceeds of the sale. “Th ere is some precedent that could give action for partition. Note that some coop- the writer’s fi ancé the ability to make a re- cate the apartment prior to commencing an erative bylaws or proprietary leases restrict RUDD Enhancing Property Values Improving Amenities & Services Providing Cost-Effective Management Call Fred Rudd, President, at (212) 319-5000 to find out how our experience can improve your property. 641 Lexington Ave. 10th Fl., New York, NY 10022 RuddRealty.com Our Expertise Your Solutions Our Expertise Your Solutions Integrity Teamwork Experience RUDD REALTY MANAGEMENT CORPORATION Exclusive Manhattan Management for Over 30 years continued on page 49