Page 17 - The NY Cooperator September 2019

COOPERATOR.COM THE COOPERATOR — SEPTEMBER 2019 17 100+ Years 380+ Buildings 1000s of Satisfied Owners, Residents and Boards | | l State-of-the-Art Financial Reporting l Responsiveness & Communication are Our Top Priorities l Leader in Technology & Compliance Tracking l Energy Auctions & Volume Purchasing to Reduce Building Costs l Long-Term Continuity of Managers & Systems l Greening NYC One Building at a Time Management for the Ages 675 Third Ave. New York, NY 10017 212-370-9200 ellimanpm.com info@ellimanpm.com RANKED #1 RESIDENTIAL MANAGEMENT COMPANY IN NYC EllimanRethink_V14_FINAL_v2.indd 1 3/11/19 12:04 PM proceeds to payment of the debt. It is im- portant to note that in the event there is a say they didn’t know. A reasonable expec- fi rst mortgage on the unit, the bank’s lien is tation is that they and/or their tenants will superior to the condominium’s lien. Th ere comply with those rules and regulations.” may be one other step that can be taken to Despite that, “there is very little that can be encourage the unit owner to pay the money done by an association to remove a tenant due. Depending on the particular commu- nity’s bylaws, rules and regulations, it may tenant violates the rules and regulations, the be possible to suspend certain non-essential unit owner has an obligation to begin pro- services that the unit owner receives.” Scott Piekarsky, Managing Member with the law fi rm of Piekarsky & Associates in best leverage under most governing docu- Wyckoff , New Jersey, says: “In terms of get- ting a condo owner out of their unit, it’s not shoes of the owner. Th e owner has a rent- like a landlord/tenant situation. Th e only er; the renter is a problem, but the owner way to remove an owner is if he or she de- faults and you can get a lien, foreclose the ciation’s governing documents say the asso- lien, get a sheriff ’s sale, and dispose of the ciation may step into the owner’s shoes and unit.” And it has to be for monetary default. take the necessary action. Th at’s the best le- “If it’s non-monetary, you can get sanctions verage over a renter.” and fees, and maybe some monetary relief, but it’s virtually impossible to remove some- one if they own the unit.” Th e statutes elsewhere are pretty much tion (ADR) – usually in the form of profes- identical. Eric Th ulin, an associate at the sional mediation or arbitration. New Jersey Needham, Massachusetts-based law fi rm state law requires that all owners in condo- Goldman & Pease, says: “First and foremost, the as- sociation would have to establish a lien against the unit.” However, he explains that “the board isn’t left without remedy.” In the event of non- monetary default, an association can seek an execution for possession, which gives the association the right to dent out.” take back possession of the unit, though it does not wipe out the owner’s equity posi- tion. Th ough Th ulin has seen such actions Boston Municipal Court: An owner in a brought before the court, he hasn’t brought suburban Boston condo association became one himself. Removing an Owner’s Tenant While it’s certainly possible, removing a but decided to stop taking it and underwent tenant from an investor unit is not particu- larly easy either. Schechter explains: “Con- dominium boards lack legal standing to association staff and her neighbors to the remove unit owners’ tenants, regardless of point where other owners feared for their how off ensive their behavior may be. Even safety. She was also delinquent in her com- if the tenant were to be in constant violation mon area charges.Th e court was sympathet- of a provision of the condominium’s bylaws ic, and in lieu of proceeding to a foreclosure, or rules and regulations, the condominium directed a settlement – specifi cally an agree- is still unable to remove the tenant because ment for judgment, which is sort of like a the condominium is not in privity with the stay of the foreclosure action. Th e owner tenant. (Privity is a relationship between agreed not to engage in off ensive behavior, two parties that is recognized by law – typi- cally blood, lease, or service. - Ed ) Th e con- dominium unit owner, however, is in privity the behavior renewed, the association could with its tenant and can take action to evict then proceed to foreclosure. To date, there the tenant.” Th at said, Th ulin points out that unit owners are “locked into the rules and regu- lations set forth in governing documents when they buy a unit, because presumably they’ve read and agreed to them; they can’t from a unit leased out by its owner. If the ceedings” to remove the tenant. In New Jersey, explains Piekarsky, “the ments is when an association stands in the doesn’t take action. Many times, an asso- New Jersey law also adds another layer to the resolution process in condominium disputes through alternative dispute resolu- miniums be off ered ADR before going to court. “Th e associa- tion can seek injunc- tive relief,” Piekarsky says. “I’ve never seen anyone forced out through injunc- tive relief, though. If they are a danger to themselves, oth- ers or the property, you can get a civil commitment, which would get the resi- A Real-Life Example Th ulin relates a case that went before the neighbor from hell. She was prescribed medication for a psychological condition, what neighbors described as a profound personality change. She harassed both the and to comply with her health care provid- ers’ instructions regarding medication. If have been no further issues. Not all situations end so neatly. Th e rights of the owner are squarely in the path of an “Th e only way to remove an owner is if he or she defaults and you can get a lien, foreclose the lien, get a sheriff ’s sale, and dispose of the unit.” — Scott Piekarsky continued on page 20