Q. We are dealing with a shareholder’s adult son who has a history of violent and destructive behavior. He previously lived with his mother in her apartment, but following a notice to cure, he moved out of the building. He has been arrested multiple times in the past, unrelated to our co-op, and still visits his mother frequently, spending a lot of time on the property. 

In the past, he allegedly punched a shareholder and caused property damage with his car. Recently, he damaged an entry door in a fit of anger. We are concerned he will seriously injure someone, and the criminal justice system has not resolved the issue to date. 

What legal options are available to restrict his presence on the property, or to address his conduct? If these types of incidents continue, can the board pursue action against the mother who is a shareholder, including a notice to cure and potential foreclosure of her shares? 

                    —Concerned for Our Safety 

A. “The fact that the son moved out does not change the remedies or the co-op’s ability to take action to prevent the conduct from continuing,” says Attorney Marc Schneider, Managing Partner with Manhattan-based law firm Schneider Buchel LLP. “In most co-ops, the shareholder is responsible not only for her own conduct, but also for the conduct of her family members, guests, occupants, invitees, and visitors. Therefore, the fact that the adult son may no longer reside in the apartment does not end the issue. If he is frequently visiting the building and engaging in violent, threatening, destructive, or disruptive behavior, his conduct may still create a default by the shareholder under the proprietary lease. This type of conduct is typically referred to as Objectionable Conduct, entitling the co-op to seek to terminate the shareholder’s proprietary lease.” 

“When dealing with objectionable conduct, it is important to distinguish between the two types of provisions that often appear in proprietary leases,” Shneider notes. “One provision will typically permit a board to vote and act upon objectionable conduct, while another requires a shareholder vote before the lease can be terminated on that basis. Although our firm has successfully handled matters where a shareholder vote was required for an objectionable conduct termination, it can be difficult in practice. Shareholders may be reluctant to get involved, may fear retaliation, may not want to attend a meeting, or may be uncomfortable voting to terminate a neighbor’s lease, even where the conduct is serious.”

 Schneider adds that even if a shareholder vote is required, and even if the board feels it cannot garner the support of the shareholders, the board still isn’t powerless. “If the shareholder is in default under other provisions of the proprietary lease and house rules separate and apart from the objectionable conduct termination provision, the board can serve a default notice based on those other violations,” he says. “For example, if the shareholder is responsible for her son’s conduct, and he has damaged property, threatened residents, assaulted a shareholder, or disrupted the safety and quiet enjoyment of the building, the board may be able to serve a notice of default and notice to cure based on those lease and rule violations. If the defaults are not cured and the conduct continues, the board may have the option of terminating the proprietary lease and pursuing a summary proceeding based on those defaults without relying on the specific objectionable conduct provision that requires a shareholder vote.

 “If there is a credible safety concern, the board may also consider seeking injunctive relief in a Supreme Court (a different court than the court where an eviction proceeding is commenced). In that instance, a court order restricting the son’s access to the property, prohibiting threatening conduct, or requiring the shareholder to prevent him from entering common areas may be appropriate, depending on the facts and evidence.

 “Given the potential safety issues, the board should act deliberately, but not passively. Regardless of the approach, the board should document each incident carefully, preserve any video footage, collect written statements, police reports, repair invoices, photographs, and correspondence, and make sure any notices are drafted precisely by attorneys experienced in handling these matters.”

 “Bottom line,” says Shneider, “based on the facts presented, the board should not continue to permit this conduct and should consult with experienced legal counsel to take the necessary action to resolve this issue.”