New York's Cooperative and Condominium Community

Habitat Magazine Business of Management 2021

HABITAT

ARCHIVE ARTICLE

Legal Lessons: Rules

Legal Lessons

 

Choosing an attorney for your building requires a series of steps. First is taking the task at hand and figuring out what legal skills are required to solve your problem. Then comes the hunt, often through word of mouth, for the lawyer possessing those skills. In the past, many boards have used Habitat’s annual attorney survey to identify potential firms and lawyers. This year, to make that resource more valuable, we have increased the scope of what we asked participating lawyers to provide. Besides the basics (fees, size, areas served, etc.), we asked them to write about typical issues or cases they have encountered and then to offer advice and comment. In doing this, we hoped to capture each lawyer’s unique thinking and tone. And we took some additional steps, too, visiting every attorney’s office and taking photos of him or her so you could see who was telling the legal tale. Digesting the advice and legal cautions will take some time, but for board directors who monitor the legal lines, it’s a good investment.

Bylaw Revisions Needed

Adam Leitman Bailey

ISSUE Having decided its bylaws and proprietary lease desperately need to be revised, how does the board get shareholder approval?

 

BACKSTORY It is a familiar story: the co-op corporation had a set of bylaws and a proprietary lease that were both antiquated. Not only were they poorly drafted, but they were rife with internal inconsistencies, conflicts with current law, and irrelevant provisions regarding the original sponsor. They did not adequately meet the current needs of the co-op. The time had clearly come for change, and the board asked its attorneys to draft revised documents.

And that is where the story ends for far too many boards. Because preparing revised documents is the easy part. But getting to the desired result – obtaining approval of two-thirds of the shareholders – is the hard part.

First, the entire board needs to support all of the proposed changes. Revisions that are endorsed by only four out of seven board members will never garner the support of a sufficient number of shareholders. We worked tirelessly with the board, revising, tweaking, adding, and amending the proposed changes until we had a document that the board unanimously supported.

Then, there is the presentation to the shareholders. Will the revisions be presented to the shareholders as all or nothing? Will a piecemeal approach run the risk of so eviscerating the changes that all the effort will yield no meaningful result? Together with the board, we devised a hybrid approach. We organized the proposed revisions into a few meaningful groups: those that brought the corporation into compliance with laws and current practices of well-run buildings; those that eliminated no-longer-relevant provisions; and those that affected quality of life and the board’s ability to effectively manage the building.

The materials were sent to the shareholders, together with proxies and ballots. The board members actively solicited the shareholders’ support. The date of the annual meeting arrived, and it appeared that the overwhelming majority of those present were in favor of the changes. Success?

No. Only slightly more than 50 percent of the shares were represented at the meeting, making it impossible to achieve the necessary two-thirds approval. If the proposals were put to vote, months of effort would have been for naught and the process would have to begin again next year.

Instead of letting that happen, we advised our client to take the following procedural steps. First, delay the voting. To accomplish that, a motion was made, seconded and voted upon to postpone the vote to a later date. And then, rather than conclude the annual meeting, a motion was made to adjourn it to a later, unspecified date. Had the meeting concluded, the ballots and proxies would have been useless for the next meeting. But by adjourning to a later date, we kept the meeting and proxies “alive” saving the directors from going back to the people who had already voted, and allowed them to focus exclusively on collecting proxies from those who had not yet voted. Additionally, by adjourning to a date to be determined, the board could wait until it knew sufficient votes were in hand, and only then reconvene the meeting for the purpose of voting. Once in hand, the meeting was reconvened, the voting (by now, a mere formality) took place, and the new documents took effect.

 

COMMENT A periodic review of the bylaws and proprietary lease is vital to every co-op, especially when it has not been done for a long time. Basic procedural matters (such as timing of the annual meeting, methods for giving notice, or quorum requirements) should be reviewed, as well as more substantive issues. Areas we have frequently addressed with our clients include qualifications for directors (must they be shareholders? must they be residents?), the number of directors, term limits, the length of term or provisions for staggered terms. The method of voting (cumulative or straight) for board members should be considered. Current provisions empowering the board to impose fines for violations of the lease or house rules, fees for apartment transfers, subletting, alterations, or use of building facilities (e.g. storage areas) must be reviewed.

Often, we find that such provisions are entirely lacking (even though the board has been imposing such charges for years). Provisions for the indemnification of directors and officers should be expanded to take full advantage of protections allowed under current law. Subletting policies should be reviewed. Procedures for resolving disputes between shareholders (e.g., mandatory mediation) can be adopted. Every building has its own way of doing things, and what works in one building may not be appropriate elsewhere. The attorney must understand how your building operates, and, working with the board, draft documents that suit the particular building’s needs. Once the board agrees on the changes, the shareholder approval process must proceed in strict accordance with the bylaws, and the notices, ballots and, proxies must be all be drafted in such a way as to maximize the board’s opportunity to garner the necessary votes.

—Adam Leitman Bailey

 

Condominium and Arrears

Brill & Meisel

ISSUE In the current economic climate, some of the deficiencies in the condominium form of ownership relative to co-operatives have made apparent a condominium’s need to be vigilant and innovative in protecting its owners. The defects have also highlighted the need for condominium attorneys to explore the idea of seeking amendments to New York’s archaic and ineffective Condominium Act.

 

BACKSTORY I was engaged by a condominium about a year ago to try to collect an arrearage of about a year’s common charges assessed against a unit owned by a foreign national who had abandoned it. Upon performing a title search, it appeared that there was also a substantial first mortgage on the unit held by a Hawaiian branch of a Japanese bank that exceeded the then-current value of the unit. None of the contact information we were able to obtain was up-to-date – the bank having apparently closed, and the owner nowhere to be found.

In view of the difficulty of serving necessary parties, the cost and time to foreclose on the unit, and the amount of debt which had priority over the condominium’s lien, I recommended sending the superintendent with a locksmith to open the unit, videotape its interior, inventory and store any contents and rent it out on a six-month lease continuing thereafter as a monthly lease. The lease would disclose that the condominium did not own the unit but was renting it as agent for the owner; that the owner could return or the mortgagee foreclose in which event the condominium would give notice; and that the tenant would have to vacate but not before six months had passed. We had done the same thing with three units in another condominium where the rental tenants were able to remain for periods of one to three years producing more than $200,000 profit for that condominium in excess of its common charges.

Though it is unusual to do so, a condominium’s duty to collect common charges to preserve and protect the building for all of the unit-owners does permit “self-help” to mitigate damages. If the unit-owner were to return and object, the owner, having subjected itself to New York jurisdiction would be obligated to the condominium for all arrearages, including penalties, interest, legal, brokerage, and storage fees and any other costs reasonably related to the rental. The unit-owner would be entitled to any net

proceeds of the rental and could either retain the tenant or require the condominium to cause the tenant to vacate the unit and return the unit in its former condition. If the lender appeared, it could foreclose its lien and it would be entitled to the proceeds of the sale or to take title to the unit. But the lender would have, at most, a claim on any prior revenues received in excess of those due the condominium. The tenant, having had full disclosure upon entering into the lease, would have no claim against the condominium as long as the initial six-month term was honored.

Despite this analysis, and the condominium’s lack of an effective remedy, its board of managers regarded the proposed strategy as too risky and declined to proceed, as a result of which the unit has remained vacant, and the arrears have continued to accrue for another year.

 

COMMENT When times were flush, brokers touted condominiums as superior to co-operatives because of the supposed freedom from regulation the owners would enjoy. In fact, since condos could not turn down sales, and the prices were not partially accounted for as a portion of the building’s underlying mortgage, brokerage commissions were both more certain and larger. Furthermore, the very characteristics that were being promoted led to more corporate, foreign, and investor ownership of condominiums. However, for the resident-owners of condominiums, the lack of regulation has exposed them to numerous problems, impairments of their investments, and quality of life questions that co-ops have not experienced.

As a result, we have recommended – and many condominiums we represent have been adopting – policies to protect resident-owners. These include more detailed and informative purchase and rental applications; escrow deposits or guaranties from purchasers with marginal finances; reserve fund contributions from incoming purchasers as well as higher move-in and move-out fees; stricter alteration policies including shorter construction periods, stiffer security deposits and daily work fees; stronger guest and pet policies; swifter and more aggressive responses to non-payments; and intense scrutiny of mortgage and real estate tax status of units.

The most important protective measure, however, will require help from the New York State Legislature, to either reverse the lien priority between first mortgagees and the condominium or at least provide condominiums a priority to the extent of one year’s common charges. Otherwise, unless they resort to self-help, condominiums are effectively without recourse in the event of defaults.

 

—Elliott Meisel

 

Hardship Exemptions

Deutsch Tane Waterman & Wurtzel

ISSUE How does a board balance its fiduciary obligations to the corporation when dealing with a shareholder who is suffering a hardship?

 

BACKSTORY Most of us are fortunate enough to have family and friends to call upon to help out if our mental and physical capacities have become diminished. We have been called upon several times to discuss the rights and obligations of a board in the tragic and unfortunate circumstance where a shareholder’s ability to care for himself or herself has become diminished, and there is no known family member or friend willing to intercede.

As the population ages, the number of people needing assistance in performing simple daily tasks has increased substantially. When we first started practicing years ago, the instances where a court would appoint a guardian to protect the interests of a tenant when a lawsuit was pending were few and far between. Now, housing court judges appoint guardians on a regular basis, usually upon application by New York City’s Protective Services for Adults (PSA), which acts when it is notified by a city marshal that an eviction against a potentially qualified individual is imminent. As a result, PSA faces an overwhelmingly large caseload.

One of our co-ops had to deal with an elderly shareholder who had no family and had stopped paying her maintenance. She was often seen wandering the streets at night half-dressed, caused fires in her apartment when trying to cook, and was often heard yelling and screaming when no one else was present in the apartment. Board members and residents took it upon themselves to provide food for her and check in on her, but they were not able to resolve all her problems, including obtaining necessary medical care or making payment of the mounting maintenance arrears.

In order to obtain the maintenance that was owed and to obtain the help that the shareholder needed, the board was counseled and agreed to begin a non-payment proceeding against the tenant, with the express understanding that it was not the co-op’s desire or intent to evict the shareholder. As it began the action, the cooperative also brought its own petition before the court for an appointment of a guardian. The guardian was responsible for protecting the tenant’s rights in the summary proceeding and obtaining financial and medical help for the tenant from PSA.

The cooperative worked closely with the guardian to assure that maintenance was paid (fulfilling its fiduciary obligations to the cooperative) and that the PSA provided assistance to the shareholder. A number of court appearances were required to insure that the shareholder’s maintenance was being paid, that she was placed on a financial management plan, and that her medical and psychiatric needs were being addressed. Eventually, PSA moved to have a new guardian appointed to manage all of the affairs of the shareholder. She was relocated to an appropriate residence, and her apartment was sold in order to provide funds for her care and maintenance.

Because the cooperative clearly took into account the needs and well-being of the shareholder, the court and the shareholder’s guardian allowed the cooperative to recover all of the substantial legal fees that it incurred in bringing and prosecuting the proceeding. The court was grateful to the cooperative for being proactive and balancing the needs of all the parties to the action. The manner in which all of the board members pitched in to provide for their fellow shareholder and the way in which the matter was resolved for the mutual benefit and protection of all parties truly represents how a “cooperative” is designed to work.

 

COMMENT No matter how well-intentioned a board may want to be, it must always remember that it is bound by its fiduciary obligation to the corporation as a whole. Accordingly, there is often a right way and a wrong way to help a fellow shareholder who has fallen on hard times or has medical issues. The situation described here is one example. Similarly, when a good shareholder has fallen on financial hardship and is unable to pay maintenance, many boards avoid taking the shareholder to court for fear of making things harder for the shareholder. Unfortunately, this often allows the arrears to build up to a level that neither the shareholder can manage nor the building can accept. When litigation is ultimately started, the shareholder often needs to assert defenses such as “laches” (an unreasonable delay in beginning the proceeding) or improper service of the petition, in order to buy additional time and stave off eviction. This results in increased legal fees and further delay at a time when the co-op needs the money and is under pressure to collect.

We constantly tell our clients that starting a non-payment proceeding does not mean that the shareholder will be evicted or that they are precluded from being understanding and sympathetic to the tenant’s predicament. More importantly, in signing a stipulation, the court will allow the board to be as generous as it wants in granting payment terms to the shareholder. Under appropriate circumstances, boards have agreed, and the court has allowed without objection, arrears to be paid over the course of years. In return, however, the shareholder waives any defense that he may have had to the proceeding.

In the event the shareholder is unable to pay, after having been given every reasonable opportunity, the stipulation will allow the cooperative to fulfill its fiduciary obligations and give it the ability to take the steps necessary to collect the maintenance owed. This not only gives the tenant every opportunity and incentive to pay his maintenance, it also satisfies the board’s fiduciary obligations to the remaining shareholders.

—Stewart E. Wurtzel

 

Controlling Pets

Norris McLaughlin & Marcus

ISSUE Given the ever-increasing difficulty of co-ops enforcing their dog prohibition policies, what can boards of directors do to control those dogs that are allowed in their buildings?

 

BACKSTORY Our cooperative clients, both regulated and market, have for the past few years been wrestling with the changing dynamics around enforcing the pet policies in their buildings. As is standard, our clients’ proprietary leases or occupancy agreements contain provisions that prohibit either pet, or, sometimes, more specifically, dog ownership in their cooperatives. The language varies from co-op to co-op, but the standard prohibition normally takes the form of a simple statement in the house rules, that dogs or, more broadly, pets are not allowed except with the consent of the co-op.

While the prohibition is straightforward and well-known to shareholders, the cooperatives’ ability to enforce these prohibitions has grown more and more difficult. Tenant-friendly laws, which have been extended to cooperatives (but, generally, not condominiums), coupled with court decisions reflecting reluctance to fully enforce these dog policies, have made it nearly impossible to actually evict cooperators for violation of the dog policy.

The first legal hurdle cooperatives face is Section 27-209.1(b) of the New York City Administrative Code, better known as the “Pet Law.” The code provides that if a landlord does not begin legal action within 90 days of notice of a pet, the co-op (deemed to be the landlord) waives its rights to object to the dog.

The courts have liberally interpreted what constitutes notice to a landlord. In addition, the court has ruled that the petitions in a housing court proceeding must be served prior to the 90-day period under the Pet Law. This substantially reduces the limited 90-day period, as some co-ops have a 30-day notice provision for termination. Given the time required to serve the notice, additional days required for mailing, and the time necessary to purchase the index number and serve the petitions on the shareholder, there is little or no time, and no room whatsoever for error, for beginning a lawsuit.

Even in those cases where the 90-day rule clearly does not apply (i.e., a case where the proceeding is begun within 90 days of the starting date of the lease), cooperators still have an additional legal defense. They may invoke the federal fair housing statutes to make a claim of medical necessity to maintain a pet, even though there is a lease prohibition against them. The standard cooperator defense to any effort to remove the pet, is that the pet is a service animal needed to address the disability of the cooperator or member of the cooperator’s family. While this exemption makes clear sense in the case of a person with a seeing-eye dog, the exception has been continually expanded to, in essence, render meaningless any dog prohibition.

The threshold for what constitutes a service dog is extremely low, as courts have held the standard to even include a pet used for emotional support. Under this vague standard, the pet is not required to have any

specific training related to a medically diagnosed disability, bur rather can be qualified as giving emotional support to an individual who may suffer any type of alleged mental distress. This means that, in many cases, a mere doctor’s note stating that the pet helps address a cooperator’s anxiety concerning a specific or not so specific illness sufficient to raise the defense of medical necessity.

There is also the fact that cooperators threatened with the loss of a beloved pet are often willing to invest substantial resources in fighting any eviction proceeding, which further increases the difficulty of enforcing their pet provisions, as co-ops face mounting legal costs with little prospect of success.

 

COMMENT In implementing a policy that allows dogs, cooperatives face a number of important issues and decisions as to form and extent. A threshold issue is whether the cooperative is an open-market or regulated co-op, as any such policy implemented at a regulated co-op, such as a Mitchell-Lama, requires approval of the cooperative’s regulatory agency.

The difficulty in enforcing a pet prohibition policy creates a situation where cooperatives find themselves with a growing number of dogs that cannot be legally removed and are unregulated. Many of our co-op clients have dealt with this problem by either removing the no-pet policy and replacing it with a strict set of guidelines, or if they continue to prohibit dogs, will implement rules for dogs of “necessity” – the ones they cannot legally evict. These rules can be used in properties that permit dogs as well.

The board must decide whether there will be a fee imposed for pet ownership. These fees take the form of annual registration fees and/or smaller monthly fees to cover the expenses incurred by the co-op because of the presence of dogs. As is to be expected, this is often a very contentious issue and the most difficult on which to reach consensus. However, our experience has been that all policies with reasonable fees are acceptable to both dog owners and, where applicable, regulatory agencies.

Besides implementing fees, boards must make decisions as to what type of policies makes sense for their cooperators, relating to the size, number, and use of common areas by pet owners that form the bulk of the regulations. In the various policies we have crafted for our clients, the general framework consists of size limitations on dogs so that the animals allowed in the cooperatives are appropriate sizes for the apartments. Size limitations are present both in federal housing guidelines as well as those of New York City. The policy also must set forth clearly the use of common areas regarding the presence of pets entering and leaving apartments. Rules limiting the use of a specific elevator, a specific entrance and prohibiting dogs from common areas such as laundry rooms and community rooms are common.

Another major issue is regulating the use of terraces by dogs in the cooperatives. For large co-ops, the issue to public grounds also requires regulation as to use and behavior of dogs.

The presence of a dog policy, even in those cooperatives that attempt to maintain the pet policy, is beneficial in that it sets forth a clear set of rules governing pet ownership that is helpful when nuisance issues must be litigated. Further, the dog policy provides clear guidelines both to shareholders and to management when dealing with dog issues.

Implementing dog policies at cooperatives is a comparably recent development and therefore a number of legal issues have yet to be fully litigated and resolved. However, as it is becoming more difficult and expensive for co-ops to completely prohibit the presence of dogs, we believe that a reasonable pet policy, consistently enforced, is an important and useful tool for cooperative boards.

—Dean M. Roberts

 

Bylaw Revisions

Phillips Nizer

ISSUE How can a cooperative corporation amend its overly restrictive bylaws to provide for greater flexibility in operating the corporation and the building?

 

BACKSTORY Our client, the board of directors of a cooperative corporation formed as a Housing Development Fund Corporation (HDFC), sought to amend the corporation’s bylaws to enhance shareholder participation while simplifying building operations.

Over the preceding several years, the directors had worked with an unofficial committee of self-appointed shareholders who had designated themselves as the bylaws review committee. The members of this committee had recommended a number of substantive and far-reaching bylaws changes in the past, including proposed changes that would be seen as controversial by many shareholders.

During these years, the boards of directors were consumed with other important building issues, including the sale of vacant apartments to establish a reserve fund, engaging a new managing agent, beginning aggressive efforts to collect substantial shareholder arrears, and bidding out multi-million-dollar contracts for Local Law 11 compliance and other critical electrical and structural repairs.

In addition to such substantive issues, the corporation and shareholders had a long history of litigation relating to governance issues dating back to the pre-HDFC days. One lawsuit was filed by the board of directors to assert control and recover diverted funds after an improperly called shareholders’ meeting attempted to recall certain directors and elect new ones; another case, which dragged on for several years, was brought by a group of shareholders who were attempting to override the board and manage the building themselves.

Given this context, the efforts to change the bylaws were perceived as too much, too soon, with the board of directors and shareholders focused on more important issues. In 2008, the proposed bylaw changes failed, in large part because they were considered as part of an annual meeting where there was a controversial board election and also the usual difficulty in obtaining a quorum of shareholders. However, in 2009, as the litigation wound down and there was greater stability in the building, the board prepared to try again.

This time, the board of directors narrowed the list of proposed amendments, focusing on key procedural changes that would make it easier to consider future alterations. The bylaws committee and the board distributed the proposed bylaws amendments to the shareholders and invited everyone to attend an “informational” meeting so the bylaws changes could be discussed well in advance of the vote. Finally, at my recommendation, the board of directors agreed in advance to “extend” the special shareholder meeting in early June so it would continue for 20 hours. The board also tried to facilitate proxy voting, although the existing bylaws limit a shareholder to casting a proxy vote for only one other shareholder.

Unfortunately, while the bylaws amendments came closer to passing than in prior years, none of the amendments obtained the necessary vote for adoption. Fifty-nine out of 117 shareholders were needed to obtain a quorum and to approve any bylaws change; 65 shareholders participated in the meeting (in person or by proxy), and while seven of the nine proposals received more than 50 votes, the highest affirmative total was 58. The board is now considering its options.

 

COMMENT There is no such thing as being “over-prepared” – especially when it comes to the governance and operation of cooperative and condominium properties. Whether a board of directors or managers dealing with a significant issue is faced with controversy, apathy, or both, there is no substitute for taking the following steps:

• Thoughtfully studying the issue, and analyzing the proposed solution to the problem to make sure that it is proportionate to the issue.

• Reviewing governing documents, applicable statutes and related materials to make sure that the solution requirements are identified, and all bases are covered.

• Considering the strategic approach that is necessary to obtain “buy-in” from enough shareholders to ensure that the solution can be popularized.

• Doing the necessary legwork to translate the proposed solution into reality.

It is not enough simply to educate or motivate people; a board must be prepared to mobilize shareholders or unit-owners in order to implement change. The extended meeting times were helpful, but not sufficient to ensure full participation. For the next time, I have recommended that the board treat the effort to amend the bylaws as a full-fledged political campaign, recruiting floor and hall captains to publicize the importance of the proposed changes, and using a “buddy system” to turn out the vote.

Serving as counsel to a board means more than being able to interpret the meaning of legal documents, or advising whether a board proposal is legal or permissible. Time and time again, I find that our most important role is that of a counselor, providing the strategic advice and direction to ensure that a building can solve a problem or achieve its goals.

—Marc A. Landis

 

 

Pets as Medical Necessity

Schneider Mitola

ISSUE How should your board deal with a request for a reasonable accommodation (i.e., a comfort pet)?

 

BACKSTORY One of the most frequent issues that has arisen today in cooperatives and condominiums is what to do when a resident requests permission to have a dog in his or her apartment based on an alleged medical necessity. Many co-ops and condos have house rules that prohibit dogs (among other pets). Unfortunately, most boards do not realize (and many do not want to recognize) there is one major exception to any such prohibition.

A co-op board must make a reasonable accommodation to permit a resident to keep a dog in the unit if that request is based upon a medical necessity of the resident. Under the Fair Housing Act and New York executive law, a reasonable accommodation is essentially a modification to a present house rule or other accommodation, which is necessary for the person to enjoy the benefits of the housing that he or she would otherwise not be able to enjoy without the accommodation.

Recently, a co-op board I represented requested that my firm take legal action against a shareholder based upon the shareholder’s having a dog in the co-op in violation of the co-op’s house rules prohibiting pets. Unfortunately, the board failed to advise us that the shareholder had previously requested permission to keep the dog based upon the “emotional support” that the dog provided. As a result of the board’s request, our firm sent the requisite default notice to the shareholder. The shareholder then responded saying that he had previously requested a reasonable accommodation based upon medical necessity and would sue the board if it refused the accommodation. The shareholder provided a doctor’s note as evidence of the condition. The co-op board decided the doctor’s note was insufficient and it did not believe in the need for such a pet. The co-op refused to permit the dog to remain.

As a result, the co-op received a complaint from the New York State Division of Human Rights claiming the board had discriminated against the shareholder in violation of the Fair Housing Act. The New York State Division of Human Rights determined “probable cause” existed. This means that after considering all the facts, it was believed that there was enough information and documentation to prove that the co-op had probably discriminated against the resident by not permitting the dog to remain.

A finding of probable cause means the matter proceeds (either to a hearing before the New York State Division of Human Rights or to a lawsuit). We demanded (as the co-op has the right to) that a lawsuit be started since we believed there was a better chance for neutrality and application of the laws from a judge than there was from a New York State Division of Human Rights hearing officer.

A lawsuit was ultimately begun in federal court. The good news was that the co-op, on our advice, immediately notified its directors and officers liability insurance carrier of the potential claim as soon as it received notification that the person was threatening a lawsuit based upon the denial of the request. As such, the insurance carrier ultimately appointed our firm to defend the lawsuit. After the initial stages of the lawsuit occurred, we requested an independent medical examination be conducted to have our own expert determine if there was a medical need for the pet. It was ultimately confirmed the pet was necessary and the case settled. The resident was afforded the reasonable accommodation and the pet was permitted to remain. However, the co-op’s insurance carrier was required to pay a settlement and the co-op incurred the cost of its deductible to resolve the matter.

 

COMMENT Boards and their management companies should take requests for a reasonable accommodation very seriously. When a request for a comfort pet is first made, the request should immediately be turned over to the co-op or condo’s attorneyer. Otherwise, there could be significant legal implications, including a discrimination claim. If the board lost, it could cause the co-op and/or condo and its board members to be liable for damages and attorney’s fees. And not just the co-op’s and condo’s own legal fee, but also the legal fees for the attorney who brought the claim on behalf of the resident.

When determining whether to provide a reasonable accommodation, boards must determine if: (1) there is a need; (2) there is a disability; and (3) there is a nexus between the requested accommodation and medical condition. If the disability is apparent (i.e., a blind person requesting a seeing-eye dog), the board cannot ask for anything further to support the request. Also, if a doctor sends a letter supporting the need, that, too, is sufficient.

If no medical documentation is provided or it is not apparent why the accommodation is required, the board has the right to request the information necessary to determine the reasonableness and necessity of the accommodation. However, denying the request of a person who is entitled to an accommodation can result in tens of thousands to hundreds of thousands of dollars in cost to the co-op or condo.

—Marc H. Schneider

 

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