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Illegal SubletingMay 10, 2012

I have a situation where a shareholder moved a relative into the coop until she found an apt. The shareholder has property out of state, leaves returns 6-9 months later. Our by laws say the lessor and relative must live in the apartment. Yes he is in violation of the by laws but on top of that the relative is a disruptive neighbor. Can some tell me what steps I need to take to have this relative removed? How do I prove the shareholders coop is not her primary residence?

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illegal sublet to a family member - dsi May 11, 2012

first are the rules established by your proprietary lease and bylaws. Secondly do you have any sublet and fee provisions established, or is it illegal to sublet an apt? assuming that you allow sublets, with a surcharge, or allow family and you need to check on the definition because many only allow for immediate family and not extended family. So, assuming that they are in breach, you first, stop accepting their maintenance payments immediately. Acceptance can be construed as acknowledgement and therefore acceptance of the situation. Second, you have your Attorney draw up a notice to cure' and set a 10 up to 30 day cure period. Assuming the pretense was for her to find a place then less than 30 is not unreasonable. You have to be committed to curing the situation and going the full route to success, which includes the very real threat, and possible action of eviction and foreclosure. Not for the faint of heart. IF she is not a shareholder it is not her primary residence, assuming there is no contract with the board for a sublease. IF you are talking about the Shareholder, it doesn't have to be their primary residence, usually (check your prop lease and bylaws) the shareholder is required to be in fully present and in residence if there is a guest in the apt, and if not immediate family (and often even if...) there is a stipulated time base restriction on their residence as well. So,lease and bylaws first, cessation of acceptance of maintenance payments is second, 'Notice to Cure' is third, and when all is said and done you can always try and go for a sublease surcharge fee based on the number of months an illegal sublet existed, but do not try this before the fact as it can inadvertently trigger an acknowledgement condition with the Judge.

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Illegal Sublet - Pres May 12, 2012

Yes our attorney has done all of the above. We have a court date with the judge, were the board needs to prove this is not her primary residence. Why should the board prove this is not her primary residence? The shareholder needs to prove this, correct?

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illegal sublet to a family member - dsi May 23, 2012

I won't assume, but since this has been an ongoing situation, has the Board kept a definitive time log on the resident? If not, maybe you can use discovery for collecting CC bills to prove airfare and/or gas receipts out of state. If you're bringing the charges, then I guess the burden of proof remands to you. Paper trails, I can't emphasize enough the value of paper trails, records, and logs. Keep it clean, but keep it in detail. If you bring an action, you have to show cause, prove there is a basis for the action. Otherwise it is considered frivolous and unsubstantiated. If you are correct, the Court can award you all your legal expense, or vice-versa if unsubstantiated. A good rule of thumb is if your action isn't so clear cut and substantiated to stand a reasonable chance of recovery then maybe you need to do more work before bringing the action. Our common-sense sensibilities as to habitability, noise, disruptive habits have to meet the Court's standards of legal definition, which at times seems very different than what we would assume as a lay person. Good luck, at least they are not a Rent Control/Stabilization holdover Tenant...!

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illegal sublet to a family member - dsi May 11, 2012

First, are the rules established by your proprietary lease and bylaws. Secondly do you have any sublet and fee provisions established, or is it illegal to sublet an apt? assuming that you allow sublets, with a surcharge, or allow family and you need to check on the definition because many only allow for immediate family and not extended family. So, assuming that they are in breach, you first, stop accepting their maintenance payments immediately. Acceptance can be construed as acknowledgement and therefore acceptance of the situation. Second, you have your Attorney draw up a notice to cure' and set a 10 up to 30 day cure period. Assuming the pretense was for her to find a place then less than 30 is not unreasonable. You have to be committed to curing the situation and going the full route to success, which includes the very real threat, and possible action of eviction and foreclosure. Not for the faint of heart. IF she is not a shareholder it is not her primary residence, assuming there is no contract with the board for a sublease. IF you are talking about the Shareholder, it doesn't have to be their primary residence, usually (check your prop lease and bylaws) the shareholder is required to be in fully present and in residence if there is a guest in the apt, and if not immediate family (and often even if...) there is a stipulated time base restriction on their residence as well. So,lease and bylaws first, cessation of acceptance of maintenance payments is second, 'Notice to Cure' is third, and when all is said and done you can always try and go for a sublease surcharge fee based on the number of months an illegal sublet existed, but do not try this before the fact as it can inadvertently trigger an acknowledgement condition with the Judge.

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illegal sublet to a family member - dsi May 11, 2012

First, are the rules established by your proprietary lease and bylaws. Secondly do you have any sublet and fee provisions established, or is it illegal to sublet an apt? assuming that you allow sublets, with a surcharge, or allow family and you need to check on the definition because many only allow for immediate family and not extended family. So, assuming that they are in breach, you first, stop accepting their maintenance payments immediately. Acceptance can be construed as acknowledgement and therefore acceptance of the situation. Second, you have your Attorney draw up a notice to cure' and set a 10 up to 30 day cure period. Assuming the pretense was for her to find a place then less than 30 is not unreasonable. You have to be committed to curing the situation and going the full route to success, which includes the very real threat, and possible action of eviction and foreclosure. Not for the faint of heart. IF she is not a shareholder it is not her primary residence, assuming there is no contract with the board for a sublease. IF you are talking about the Shareholder, it doesn't have to be their primary residence, usually (check your prop lease and bylaws) the shareholder is required to be in fully present and in residence if there is a guest in the apt, and if not immediate family (and often even if...) there is a stipulated time base restriction on their residence as well. So,lease and bylaws first, cessation of acceptance of maintenance payments is second, 'Notice to Cure' is third, and when all is said and done you can always try and go for a sublease surcharge fee based on the number of months an illegal sublet existed, but do not try this before the fact as it can inadvertently trigger an acknowledgement condition with the Judge.

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illegal sublet to a family member - dsi May 11, 2012

First, are the rules established by your proprietary lease and bylaws. Secondly do you have any sublet and fee provisions established, or is it illegal to sublet an apt? assuming that you allow sublets, with a surcharge, or allow family and you need to check on the definition because many only allow for immediate family and not extended family. So, assuming that they are in breach, you first, stop accepting their maintenance payments immediately. Acceptance can be construed as acknowledgement and therefore acceptance of the situation. Second, you have your Attorney draw up a notice to cure' and set a 10 up to 30 day cure period. Assuming the pretense was for her to find a place then less than 30 is not unreasonable. You have to be committed to curing the situation and going the full route to success, which includes the very real threat, and possible action of eviction and foreclosure. Not for the faint of heart. IF she is not a shareholder it is not her primary residence, assuming there is no contract with the board for a sublease. IF you are talking about the Shareholder, it doesn't have to be their primary residence, usually (check your prop lease and bylaws) the shareholder is required to be in fully present and in residence if there is a guest in the apt, and if not immediate family (and often even if...) there is a stipulated time base restriction on their residence as well. So,lease and bylaws first, cessation of acceptance of maintenance payments is second, 'Notice to Cure' is third, and when all is said and done you can always try and go for a sublease surcharge fee based on the number of months an illegal sublet existed, but do not try this before the fact as it can inadvertently trigger an acknowledgement condition with the Judge.

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