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A Key Issue

For the board members of one Manhattan condominium, the need for shareholders to hand over a duplicate key came in sharp and clear on a Sunday evening. A shareholder on the ninth floor was complaining that she could smell smoke from an apartment, and no one had a key to get in. After a nervous consultation among board members, the decision was made to call the fire department. "What do you do? I gave permission to have the door knocked down," the vice president recalls.

Fortunately, the smell of smoke turned out to be a false alarm. An investigation by the firefighters led to the discovery of an open vent in a kitchen two flights up. The vent was pulling smoke from a nearby chimney and sending it down to the ninth-floor apartment. The smell in turn was then leaking out into the hallway, causing a panic. "I was concerned. You didn't see any smoke, but you had a very strong smell of fire," recalls the vice president.

Although no one was hurt, there was a toll for the board: a $5,000 bill to fix the broken apartment door. According to the vice president of the Manhattan condominium, the owners of the ninth-floor apartment argued that because their door was considered part of the common property of the condo, and there had been no legitimate emergency, it was the obligation of the condo to fix the door.

And, as in all frustrating stories, there was a particularly vexing aspect to the issue: the condominium had just recently invested over $10,000 in an electronic key security system designed specifically for such an emergency. But the couple on the ninth floor had not turned in a duplicate key.

"It was infuriating," reports the condo vice president. "If there was a leak or something, they would have had to pay, but because there was nothing wrong, and we erred on the side of safety, the building had to pay for it." While the board briefly contemplated fighting the couple on the issue, in the end, it was easier and cheaper to pay for the door than to take the dispute to court.

Most proprietary leases or co-op and condo bylaws mandate turning in a key, points out Paul Herman, director of management with Rose Associates. Nonetheless, he acknowledges, managing agents have to work very hard to get residents to turn in a duplicate key, and still are not always successful.

"I have never seen a proprietary lease that doesn't have the right-of-entry provisions," maintains Theresa Racht, an attorney at Rosen & Livingston. In most leases, she adds, the paragraph concerning a board's right to enter an apartment stipulates that a set of keys "needs to be left with the corporation in order to provide access during emergencies, and that the corporation has access during anytime, given reasonable notice. [Shareholders] have an affirmative obligation to provide key and access."

Hoping to get ahead of the problem, board members in a co-op on Amsterdam Avenue six years ago insisted that all owners turn in copies of their unit keys. The managing agent went door to door to those residents who resisted, with a letter from the board using the language from the proprietary lease mandating the duplicate key. The keys were collected and coded, and each was placed in its own plastic box, which was sealed and then stored in a larger box, and kept in a locked storage room.

This set-up, designed by Leonardo Sideri, founder and president of Keysure, is a non-electronic, "simple, hands-on system," says Sideri. There are no passwords to remember, and the key code is kept separately from the keys, locked in the units of the board members, the managing agent, and the super. The key has a tag that has a number, and that goes on the outside of the container, which is how it is identified. If you are the tenant, you sign your name in the container; on the outside, you sign your mother's maiden name. Why inside the container? So it identifies it as their container in case it is broken into, they know to whom it belonged, and who has to pay for a new box.

"The person who needs the key breaks the box, opens the door [to the apartment], and then gives me the keys and I put it in a new box and have the owner sign the box and then put the box back," explains Victor Beube, who manages the Amsterdam Avenue building that uses the system. The little blue box is then returned to the specially built storage room in the basement, and locked in a larger box. The shareholder is charged a $5 replacement fee each time the box is opened. In most instances, says Beube, it is the shareholder requesting the duplicate key to get into his or her apartment because they have been locked out. Keysure starts at $600 for a 50-unit building.

To encourage their shareholders to turn in duplicate keys, larger management companies, such as Burton Wallack Management and Rose Associates, have begun installing electronic key-tracking systems in their buildings, both to make residents feel more secure and to keep a computerized record of which apartments are entered, why, and for how long.

At the Churchill, 300 East 40th Street, the board installed KeyTrak while the building was undergoing a multi-million dollar renovation several years ago. The system operates on a locked steel door, coded to a computer, which tracks when the door is open, why, and for how long. The keys inside the drawer are attached to plugs and released by the computer. There are three levels of access, explains sales representative Richard Battle: password; key fob, or tag, containing a chip with the employee's name, address and telephone number; and fingerprint verification.

"You walk up to the machine, you enter your password, fob, or fingerprint, and then you request an apartment key, why you want in and put in the reason for repair," and then the drawer opens. But the computer randomly codes the keys in the drawer, so there is no way to memorize the slots they are left in, or to identify them by apartment number. Other companies, such as Morse Watchman and Key Security Systems, also use intergrated electronic systems, which include locked steel drawers or a mounted cabinet, also controlled by a computer software system.

While KeyTrak representatives decline to give a price for their product over the phone, Bruno Mascianna, an electronic security specialist with Central Lock and Security Systems in Manhattan, estimates that installing an electronic key-tracking system could cost upwards of $18,000 to $20,000 for a 50-unit building.

"In a residential market, from my point of view, I usually suggest to people not to hand over their keys, unless they are required to by contract," offers Mascianna. "If they do, the least sophisticated method is to put the key in the envelope, put the name over the back flap."

There is also key-tracking, continues Mascianna, "where you are trapping a key inside plugs in a cabinet [or drawer] and when it's logged out, a hard copy is being generated, so if anything happens you can go back and lock and see if anyone used this key."

Oftentimes, buildings have to threaten a lawsuit to get access to an apartment. "We had a building where there were leaks occurring from a tenant's air conditioning into the apartment below. The building was having trouble getting access and the tenant wasn't cooperating and the co-op brought a lawsuit," says David Berkey, a partner at Gallet Dreyer & Berkey. After the co-op filed a lawsuit, the tenant backed down and agreed to give the super access to make the needed repairs.

"If it's a true emergency, the board has the power to knock down the door," however, adds Berkey, "we tell our buildings that unless there is a true peril to person or property, don't take that route."

Nonetheless, co-op boards have the right to demand a duplicate key, a right codified under Section 51-c of the New York State Multiple Dwelling Law, attorneys point out. The law provides that "every tenant of a multiple dwelling...shall have the right to install and maintain... in the entrance door of his particular housing unit...a lock, separate from any lock installed and maintained by the owner...provided that a duplicate key to such lock shall be supplied to the landlord or his agent upon his request."

So, if push comes to shove, what can a board do if a recalcitrant member won't turn over a key? One example of case law may be helpful.

In what was a landmark decision in housing court in 1996, Judge Eileen Bransten ruled in favor of a co-op board that wanted to evict a shareholder who was refusing to turn in a duplicate key. The judge found the shareholder's reluctance unsupportable in the face of the language of the proprietary lease, which, she wrote, provided both a reasonable reason for turning in a duplicate key and reasonable safeguards against its abuse. The judge gave the tenant 10 days to hand over the key, or pack her bags and move out. The co-op had the right to "enforce the key provision and terminate the tenancy of the resident," wrote Bransten in 111 Tenants Corp. v. Stromberg.

Indeed, added the judge, observing that the co-op's actions had a "legitimate relationship to the welfare of the cooperative," the clearly articulated and rational purpose behind the duplicate key requirement "is to protect the property in an emergency and to facilitate repairs to the premises for the benefit of the cooperative and all its shareholders."

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