Aug. 12, 2009 — Can co-ops evict shareholders who are using their apartments for criminal activities even if they are not hurting the other residents? And does a board have any responsibility to try to do something about the activity?
Yes on both counts. In fact, co-ops can take advantage of laws intended to help landlords evict tenants in far more dangerous buildings than you're probably in. And indeed, a landlord — which includes co-ops, since they work under a proprietary lease — that allows such unlawful activity as drug-dealing or counterfeiting goods is "liable severally, and also jointly with one or more of the tenants or occupants thereof, for any damage resulting from such unlawful use, occupancy, trade, manufacture or business." So in a practical, day-to-day sense, what does this mean — and what can you do?
First, some background: In New York, the so-called "bawdy-house" laws, originating in 1868 to combat prostitution, are at the core of a landlord's arsenal against tenants conducting or allowing criminal activities at or from their apartments. The original law eventually expanded in scope, and in 1962, the bawdy-house laws were moved to their current designations as New York Real Property Actions and Proceedings Law (RPAPL) Sections 711(5) and 715.
The former section allows a landlord to sue to evict if the "premises, or any part thereof, are used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for the purposes or prostitution, or for any illegal trade or manufacture, or other illegal business." The latter section allows other parties to demand that a landlord sue to evict, or to do it themselves if the landlord fails to comply within five days.
As New York RPAPL Sections 711(5) and 715 evolved, so did Real Property Law (RPL) Section 231, which among other things can void any lease that a tenant or occupant is using for "illegal trade, manufacture or other business."
Dealer or No Dealer
One critical issue to address is whether the tenant or occupant in question is engaged in drug trade or simply is a user. A court dismissed one recent proceeding in part because a police officer testified that, in arresting the occupant for gun possession, he observed "no scales, prerecorded money, no packaging, no substances used to cut drugs, no customer lists, or [drug-related] paraphernalia," and "no witnesses were asked by petitioners to testify as to customer traffic in and out of the premises, or other indicators of a commercial business."
By contrast, another court refused such a dismissal and ordered a trial because the tenant's "participation or acquiescence in the use of the apartment for illegal drug sales may be inferred from the indicia of drug measurement, packaging and sales recovered in the search of the premises."
Such cases tell us that a co-op pursuing a drug-related eviction would have an easier time if the proceeding followed an arrest, search and seizure and a guilty plea or conviction. That could provide the evidence critical to establishing the commercial aspect of the activity. The co-op's dilemma is that the district attorney may not be so eager or able to provide assistance until after the disposition of the criminal proceedings, if ever, especially if the offending shareholder is not deemed a significant risk to other residents.
So, co-ops must be more disciplined than ever in order to gather evidence of drug trafficking. How? By carefully logging who enters and exits the apartment, and by monitoring activities in the common and outside adjacent areas, among other ways. One positive is that you don't have the burden, as do prosecutors in criminal proceedings, of proving the criminal conduct beyond a reasonable doubt. All you need is a "preponderance of the evidence," which means simply evidence of such weight as to produce a reasonable belief in the truth of the facts you assert.
The Nexus of Subtenants
What if the principal offender is a roommate or subtenant? The courts have held that you must establish that the "tenant-respondent 'knew or should have known' and turned a 'blind eye' to the illegal business," or put another way, that the tenant "had knowledge of and acquiesced in the use of the demised premises for such illegal activity." And where "the named tenant is not personally involved in the illegal activity, a 'nexus' between the activity and the subject premises must be demonstrated."
The courts are reluctant to allow innocent tenants to lose their homes based on the conduct of their wayward boyfriends, children, and the like, especially if the tenant has limited resources or options to live elsewhere. For co-ops, courts comparably might be reluctant to allow surrender of ownership of valuable apartments based on the conduct of residents other than shareholders.
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