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assessment/tax rebate: by-law - queen latifa Apr 21, 2008


So this is in our bylaws and it looks like we cannot have an assessment when there is a tax rebate - without a vote. Anyone run into this? (our sponsor owns about 20%).

"So long as the Sponsor or the Holders of Unsold
Shares continue to own any percent of the then
Outstanding shares of the Apartment Corporation, the
Apartment Corporation will not impose upon the
shareholders any assessment whatsoever except by
affirmative vote of one-hundred (100%) of the issued
and outstanding shares, unless the Reserve Fund has
first been reduced to a sum of $15,000, or such sum
has been irrevocably committed for other improvements. "



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Do you automatically place exce4ss funds in the capital reserve funds?

Do you not separate ordinary income from capital improvements for “tax purposes” for the owners? Your CPA should be advising on this.

Do the bylaws elsewhere stipulate that there are to be several reserve funds?

If yes, then capital reserves and ordinary working capital reserves need not be commingled and should not be commingled. Again your CPA firm should be offering counsel. Thus, if there is a need for capital improvements, one can ensure that there is less than $15,000 in the “capital” reserve fund after the board commits to spend it, regardless if a contract has been signed for the capital work.

Again pass this through the corporate counsel and CPA firm.

And, maybe plan on changing the bylaws to more clearly state the restrictions and to reduce 100% to something tolerable.

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anyone: bulk cable? need to talk - st Apr 20, 2008


input and advice needed regarding this for UWS coop. thanks. bulk arrangements with RCN, satallite, , etc. thanks!

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Management / PEO - Mike W. Apr 16, 2008


Anyone with experience using a PEO or Professional Employer Organization? I cannot find anything in Habitat's archives. Our Managing Agent is understandably hesitant, but prospective PEO is offering substantial cost saving for health benefits policy for staff of 2 (non-union) as well as payroll service. We retain final authority to supervise and hire/fire. Any downside to outsourcing ?

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Nominations at Annual Meeting - Jojo Apr 12, 2008


Our board will send out notices for our annual meeting and anyone interested in running for the board must give notice to management a month before the meeting is held. They then state there will be no nominations from the floor.
Is this legal?

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Check the By-Laws of your co-op to find out what is the process of nomination and if there is such deetail contained in the by-laws. If not, you may find out what part of the by-laws may be changed by the board by way of resolution. For example, many co-op may have resolutions to cover staggered boards. If per chance, the mannerin which candidates submit their nominations is an area that a board may change by way resolution, then you want to see a copy of the resolution, when it was adopted and the manner in which it was distributed to shareholders to provide notification. Remember, any changes to by-laws and PL must be COMMUNICATED to shareholders to be valid.

AdC

Again, boards are obligated to distribute resolutions adopted by the board that may impact or modify the by-laws or the Proprietary Lease.

AdC

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Check the By-Laws of your co-op to find out what is the process of nomination and if there is such detail contained in the by-laws. If not, you may find out if any article of the by-laws may be changed by the board by way of resolution. For example, many co-op may have resolutions to cover staggered boards. If per chance, the manner in which candidates submit their nominations is an area that a board may change by way resolution, then you want to see a copy of the resolution, when it was adopted and the manner in which it was distributed to shareholders to provide notification. Remember, any changes to by-laws and PL must be COMMUNICATED to shareholders to be valid.

AdC

Again, boards are obligated to distribute resolutions adopted by the board that may impact or modify the by-laws or the Proprietary Lease.

AdC

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Check the By-Laws of your co-op to find out what is the process of nomination and if there is such detail contained in the by-laws. If not, you may find out if any article of the by-laws may be changed by the board by way of resolution. For example, many co-op may have resolutions to cover staggered boards. If per chance, the manner in which candidates submit their nominations is an area that a board may change by way resolution, then you want to see a copy of the resolution, when it was adopted and the manner in which it was distributed to shareholders to provide notification. Remember, any changes to by-laws and PL must be COMMUNICATED to shareholders to be valid.

AdC


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As if oft the refrain herein, it depends on your co-op’s corporate bylaws.

In our building the bylaws specify that thirty days before the annual meeting all shareholders must be notified in writing of the meeting and the closing date for nominations. While we sometimes put co-op notices under a resident’s door, in this case we mail a letter to all shareholders notifying the shareholder of the date of the annual meeting and the closing date for all nominations. The closing date is two weeks before the annual meeting.

This year the closing date is 4 PM, May 15th, two weeks before the annual meeting. Within minutes, we post the names of all nominees on the bulletin board.

Nominations are never permitted from the floor per our by-laws, without exception.

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President of Board Vote - Lillian Iannucci Apr 12, 2008


Do boards follow Robert's Rules on a president's vote or is there a different rule for condo's and co-op's. Is the president allowed to vote on all issues or is it just when there is a tie vote?

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In our building, the president votes on all matters before the board and not as a tie breaker.

As for Roberts Rules of Order, this NYTimes article, Q and A, By SHAWN G. KENNEDY Published: February 23, 1992:
Absence of a Quorum Question: I live in a Mitchell-Lama co-op. At a recent shareholders meeting there was a discussion about what action is taken in the absence of a quorum. An attorney for the housing company said that Roberts Rules of Order are not recognized as an authority on parliamentary procedure. Was he correct? . . . Theodore Smith, the Bronx Answer: Yes. Roberts Rules of Order are not legal guidelines, although they are time-honored procedures for conducting orderly meetings. Any official meeting of a co-op in New York State during which business is conducted would have to conform to the state's Business Corporation Law.

See:
http://query.nytimes.com/gst/fullpage.html?res=9E0CE7DB1331F930A15751C0A964958260


= = = = = = =
The Cooperator had an article that opined:
Liberty Court Condominium Residential Unit Owners Coalition v. The Board of Managers of Liberty Court Condominium Lesson: Calling for nominations of candidates for board membership from the floor at the time of a board election is a "fair and effective method" for nominating board members.

The bylaws of many cooperatives and condominiums do not specify how to nominate candidates for election to the board. It seems that Liberty Court Condominium's bylaws did not specifically address how candidates must be nominated, but provided that unit owner meetings are to be governed by the current edition of Robert's Rules of Order or other rules acceptable to the majority of unit owners present at the meeting. A coalition of Liberty Court owners wanted precise rules covering the nomination method and sued for a bylaw amendment. The coalition lost and the Appellate Division, First Department, gave some guidance on this issue.

The court explained that the statutory requirement that bylaws provide for the nomination of a board is satisfied by Liberty's bylaw provision referring to Robert's Rules of Order. Like many co-ops and condos, Liberty's board accepted candidate nominations from the floor of the meeting. The court recognized that accepting nominations from the meeting floor is a "fair and effective method" for the nomination of board members. Notably, the court was impressed by the fact that the condominium also customarily delivered a pre-meeting notice of nominations and decided that such notice comports with Robert's Rules of Order and gives "fair and effective notice."

See:
http://www.cooperator.com/articles/1028/1/From-the-Court-to-the-Board/Page1.html





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NYSERDA Energy Audits - Jonathan Apr 10, 2008


Has anyone gone through getting the NYSERDA Energy Audits? I talked to them and they dont do the audits but give you a list of partners to contact. This is the list they referred me to

http://www.getenergysmart.org/Resources/FindPartnerDetails.aspx?co=36

Seems to be a lot of construction companies so I don't know how impartial they would be, and Habitat for Humanity on the list I don't understand.

If you have been through the process who did you use and would you recommend them?

TIA

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The “What to Expect” document will help you hire a Multifamily Performance Partner (or just “Partner”), which is the first step to getting an energy audit for your building. The “Step by Step” document will give you a better understanding of the process you will go through in the program and lists the incentives available on Page 2.

The Partner Network: http://www.getenergysmart.org/Resources/FindPartner.aspx - list of approved Partners by county. Feel free to peruse their websites and contact them immediately to discuss your project. They can answer your questions about the Program, what incentives are available and what the next step is for you.

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Try this organization - they are based in Manhattan and have done several large coops:

http://www.aeanyc.org/site/c.dhJJJTOzFoH/b.2392579/k.8E53/Energy_Audits.htm

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Please would you list some buildings this organisation has been working for?
Thank you
Miriam

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call them for references.

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Shareholders Meeting - Martha Apr 09, 2008


What, in general, are shareholders interested in hearing about at annual meetings?

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Martha, the annual meeting should report activity since the last meeting and give SHs an idea of what's in store for the year ahead. In general, SHs want to know their money was well spent in the past year to improve the coop and enhance their investment and that there isn't a maintenance increase or assessment coming up.

SHs like good news - how much the coop collected via a flip tax/transfer fee...refunds from the city...ways you were able to upgrade the coop and save money doing it, etc. Look at the last annual meeting's minutes and report on positive steps taken on things discussed a year ago.

But few coops have only good news. It's smart to alert SHs to major projects you know aren't far off but don't guess-timate costs. They can change a lot by the time you do the project. SHs will remember what you say and throw it back in your face. Remind SHs at meetings of major near-term projects so they aren't a surprise when the times comes to implement them, esp if you'll need an assessment to pay for them but don't get into things the board isn't seriously considering for the coming year.

SHs all have a personal agenda. If they ask why they have to pay to repair their air-conditioner or why the board can't evaluate/approve a new sublet tenant in a week, give them a brief, courteous answer and tell them to call the managing agent or you for a fuller explanation. SHs deserve a reply to concerns, but don't waste everyone's time at the annual meeting on issues that don't interest or affect them all, esp if what they ask isn't relevant to what's being reported or discussed at that point in the meeting. That's how things get off track and why meetings often last longer than they have to. It's often a juggling act and whoever chairs the meeting has to keep things in order. But don't ignore or dismiss a SH's question or concern. That's one thing that drives SHs crazy. Answer them at the meeting if you can without wasting time or tell them to follow up with the managing agent or you later.

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We distribute a state of the co-op letter to all shareholders about three weeks before the annual meeting.

We describe the financials of the co-op, accomplishments during the year, plans next year, the proposed increase (a range) in maintenance and assessments* the status of capital improvement programs, and outside factors that may affect the co-op, e.g.; fuel costs.

*As all costs rise each year, we raise maintenance every year. In our opinion, failure to do so (raise maintenance) or to finance operating expenses from mortgages is anathema to true fiduciary responsibility.

Our annual meeting, including voting is typically concluded in fifteen minutes, this includes election of officers and voting on key items.

Wait, don’t criticize!

After the annual meeting is closed, we conduct a Q&A session. For as long as folks wish to ask questions we remain.

So, if the annual meeting begins at 7:30 PM and closed at 7:50 PM, we have often stayed until 9:30 to answer questions.





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Management Companies - Anonymous Apr 03, 2008


Any recommendations for a managing agent? We are a small (under 25 units) residential building in Manhattan. New construction, fully occupied, part-time super, typical "new-building" issues. Very active board that is willing to go the distance to work closely with the managing agent and to run the coop efficiently and effectively.

We inherited our current managing agent with the building and they are unresponsive to our needs, unwilling to step up their performance, and arrogant to boot!

We are looking for an agent that specializes in small buildings and the related issues of budgets, expenses, maintenance, insurance, etc.

Any suggestions will be greatly appreciated!

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Try Matthew Adam Properties, Inc.
127 East 59th Street, 3rd Floor
New York, N.Y. 10022
(212) 699-8900

Ask for Ira Meister, President

Good Luck in your search

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The management selection process is a tough job for any board of directors to take on. I suggest that you do the following:
Speak to the Cooperative's/Condominium's attorney and accountant and ask them for recommendations. They will give you at least three companies to speak with as to give you only one is a conflict of interest. If you do not have an attorney selected as yet it should be done before you seek out a managing agent.
Hire a management consultant to help you with the selection process. This should not cost more than a couple of thousand dollars and should result in saving you lots of time and frustration and save you at least, if not more in future management and extra fees.
Prepare a questionaire for each of the candidates to complete. Don't get too detailed, get the pertinent questions answered.
Decide exactly what you expect from the managing agent so that you can communicate your expectations to prospective candidates.
Visit the back office of each company to see what is behind all the talk.
Lastly, there is no such thing as a "small building specialist". All professional management companies are able to manage a building no matter what the size.

If you need more information, contact me.

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Much appreciated! We know that we are in for a long and difficult process and appreciate all of the help that we can get!

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If you think it is worth $100 per unit to have a professional guide you through this process from start to finish, please contact me and I will be glad to meet with your board to discuss it.

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We made a big mistake a year ago! And now we are interviewing for new mang companies. Call the Boards of the other buildings of the companies you are interviewing -- and speak to more than one Board member. Dont be discrete and so polite that you end up with a Mang who thinks they own your building. Most Board's forget that this is a business negociation. A friend of mine says that he Negociates like an enemy -- but comes through as a friend.

And going forward -- Email has now become a catalyst for change in how Mang companies operate. No more "I did not get your message." Email keeps everyone informed and honest.

The Property agent is the most important person. Again, find buildings he mananges -- and talk to the residents. The Agent can make all the diffrence.

Fees: A cheaper company may charge higher fees, or have hidden cost. Such as: Outragous processing fees for small jobs. Mailing cost.. etc...you will be surprised by how quickly the cost adds up...

If you have a Super you trust, he could give you your best lead....
Sorry to sound so distrustful -- but we have paid, paid and paid for our mistake.
VP


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Roommate - Dan Apr 02, 2008


I live in a condop, and the proprietary lease states that sublease require board permission and can only be up to 2 years. I have a roommate for almost 2 years. Is having a roommate a sublease?

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According to the NY State Rent Stabilization laws, a roommate is distinct from a subletter, and a renter has an absolute right to have a roommate. The landlord is not required to approve the person, and only has to be notified.

Any court looking at any proprietary-lease clause about roommates will look to that established tenet (note: "tenet," not "tenant"!) for guidance. It's hard to imagine a court would find forbidding a roommate acceptable -- if it were, you couldn't a significant other move in with you.

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Condop?
Dan, where exactly do you live in the condo or coop?
Condo apartments can be freely sublet, and there is no way your proprietary lease states that sublease require board permission and can only be up to 2 years.
In the coop The proprietary lease usually provides that the shareholder and members of the shareholder’s family may occupy an apartment, and Section 235-f of the Real Property Law (the so-called “roommate law”) provides that every residential lease entered into by one tenant “shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant…” This law has been held to be applicable to co-op proprietary leases. Therefore the co-op board may not prohibit shareholder from having a roommate.

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I live in a cond-op. Despite its name, to me, it's pretty much a fancy name for a co-op. In any case, the board instituted a new rule requiring the shareholders to "register" their roommates with them. And, get this, our management company wants an occupant (non-owner) registration fee. I am starting to believe when there's nothing to discuss at board meetings, things start to get ridiculous.

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You have to tell them the name of your roommate if they ask and nothing else and there is no way they can legally charge a fee. get on your board and help them/. they need it.

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Breaking ByLaws: The Board - AliceT Mar 31, 2008


Our Board is breaking our ByLaws in informing a SH that they cannot name a proxy to attend the SH meeting.

It is clearly written in our BL, that SH can appoint a Proxy --- and we have a 20 year history of Proxies attending meetings and asking questions. There are no qulifications for the Proxy -- or any restrictions...

Adding to this, this SH has taken a strong stance on an issue not popular with the Board, and if this matter comes up for a vote -- they would prefer not to have his vote counted.

We want a legal opinion from the CoOp lawyer, and were told that the SH have a right to ask for this, and that this is covered in NYS Coperation laws,... but fully expect the Board to nix this request...Anyone have any experience in this???

Legal definition of Proxy:
http://legal-dictionary.thefreedictionary.com/proxy

proxy n. 1) someone who is authorized to serve in one's place at a meeting, particularly with the right to cast votes. 2) the written authority given to someone to act or vote in someone's place. A proxy is commonly given to cast a stockholder's votes at a meeting of shareholders, and by board members and convention delegates.

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I believe this was already discussed below ("B/M Breaking By-Laws: Out of Control Board")?

In any event, can you quote the section(s) of your By-Laws that you believe are being broken? Also, are you sure that your By-Laws require a 2/3 affirmative vote of shareholders? I'm asking, because a change of our building's By-Laws can be done by either a 2/3 affirmative vote or shareholders *or* by a vote of the Board.

If you want an attorney's opinion, you may have to pay for it out of your own pockets...but it sounds as if it would be money well spent. Good luck.

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Thank you... The only way the BL can be changed is with 2/3 vote of the Shares.... The Board cannot change the ByLaws.

I would be very surprised that a Board can change the ByLaws.... This would leave the SH helpless in the face of BM(s) with a personal agenda -- which is exackly what has happened in our building..

Its now in the CoOp lawyers hands...

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>

Sorry, but you are wrong. Our By-Laws state, in Article XII, Amendments:

"Section 1. These By-Laws maybe amended, enlarged or diminished either (a) at any shareholders' meeting by vote of shareholders owning two-thirds (2/3) of the amount of the outstanding shares, represented in person or by proxy, provided that the proposed amendment or the substance thereof shall have been inserted in the notice of meeting or that all of the shareholders be present in person or by proxy, or (b) at any meeting of the Board of Directors by a majority vote, provided that the proposed amendment or the substance thereof shall have been inserted in the notice of meeting or that all of the Directors are present in person, except that the Directors may not repeal a By-Law amendment adopted by the shareholders as provided above."

Have you actually read your By-Laws to confirm that it does not contain the above paragraph?

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We have all read the Bylaws, including our lawyer, and our ByLaws do not allow the Board to overturn a Bylaw...

We would be wrong in your case, but in ours -- we are right.

AliceT

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i have been in my co-op for 2 years now and have experienced nothing but heartache.
i have been complaining about mold for 2 years now around my air conditioner and have not gotten anyone to come look at until last week. when someone did come take a look at courtesy of the board,not only did they not fix the mold but they said it was because of my airconditioner sleeve. they took out my air conditioner changed the sleeve and left my air conditioner sitting on the floor. they refused to put it back in. they said the board told them not to put it back in. THEY NEVER TOLD ME THIS UPON THEM COMING IN AT ALL. HE TOLD ME HE WOULD PUT IT BACK IMMEDIATELY. they have also complained that i am using a 220 volt amp to run my air conditioner which was allready established before i moved in and one that they have seen during 3 inspections they have done. They are abusing thier power in order for their electrician and air conditioner people to get paid.
CAN SOMEONE HELP ME!!!!

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Every definition I’ve read or that my own co-op employs defines the role of a proxy as a means of casting a vote, nothing more or less.

Even the definition, copied from the author of this thread, asserts the same; to wit:
Legal definition of Proxy:
http://legal-dictionary.thefreedictionary.com/proxy
proxy n. 1) someone who is authorized to serve in one's place at a meeting, particularly with the right to cast votes. 2) the written authority given to someone to act or vote in someone's place. A proxy is commonly given to cast a stockholder's votes at a meeting of shareholders, and by board members and convention delegates.

No where does the definition address the issue that a proxy holder is allowed to address the board during the Board of Directors meeting. A search of the Internet and other forums such as this one will reveal scant to nil occasions where a proxy is permitted to enter into dialogue with the Board of Directors.

Quite frankly, in my co-op the proxy holder, when credentials are verified is only permitted to vote during the Board of Directors meeting. Before one has a knee jerk reaction, we then close the Board of Directors meeting and conduct an open forum with all shareholders present. But, even in this open arena, by our definition a proxy has no stature to address the Board or the shareholders present, unless specifically invited to do so.

If the Board of Directors refuses to accept the valid credentials of a proxy holder and the votes to be cast by the proxy holder, then one has the foundations for legal action or other remedies that are permitted by the corporation’s bylaws if a Board member violates the tenets of fiduciary responsibility.

If one wishes to ascribe other powers to a proxy holder, or to a shareholder, for that matter that is either a local prerogative granted or removed by the Board of Directors.

The caveat as always is that the by-laws may stipulate that a shareholder or proxy holder may be permitted to address the Board of Directors in a Board of Directors meeting. Most often this is never the case.

On the other hand, in a shareholders meeting, which is different than a Board of Directors meeting participants may be allowed to voice opinions at the discretion of the Board of Directors. Again, unless the “rules” for an open forum are in some legal document crafted by the corporation, the Board of Directors can establish its own rules and change them.

Some folks in their comments in these forums seem to forget that the co-op is a corporation with a dutifully elected Board of Directors, empowered to conduct the business of the corporation on behalf of the shareholders.

If one is at odds with the actions of the Board of Directors, whose activities may be unsavory and yet within the fiduciary responsibility of the Board of Directors, one may run a slate to depose one or more board members, or depending upon the by-laws of the co-op corporation, one may petition for a special election.




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