New York's Cooperative and Condominium Community

Habitat Magazine Business of Management 2021

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BOARD OPERATIONS

HOW CO-OP/CONDO BOARDS OPERATE

Co-op Board Says "Go Away" to Executor of Estate

New York City

Co-op board power, proprietary lease, executor of estate.
May 19, 2021

A woman lived alone in a co-op. When she died, the co-op board refused to allow the late woman's daughter to live in the apartment while she cleaned it out and settled the estate. Is this another example of board overreach?

“These situations are very common,” Ian Brandt, a partner at the law firm Wagner Berkow & Brandt, tells Brick Underground. “Not only is an executor or administrator of the will dealing with the unfortunate death of the shareholder but often they are coming to New York from out of town, only to be told by co-op management that its board has authority to deny their use of the dwelling.”

Brandt says it's possible to challenge a co-op board that won’t allow an estate administrator or executor to stay in the co-op apartment while the estate is wound down. In fact, every co-op proprietary lease has a built-in right to allow an executor to do just that. “It’s not discretionary – the board has no power to say ‘no’ to this. Executors have statutory authority to take possession of the decedent’s real property to administer the estate and co-op proprietary leases recognize this.” 

Co-op boards in New York City are known to have considerable power. Even though there are bills pending in Albany to make the process more transparent, boards can still reject a potential buyer without giving a reason. They can also deny your renovation plans and decide whether or not you can refinance. 

However, co-op boards have no authority to deny a shareholder’s executor access to fully use the apartment for dwelling purposes while it is being cleaned out and prepared for sale, or getting it ready for transfer to another family member, depending on the wishes of the decedent. “Providing an executor with a finite but reasonable number of days in which to get the work done should not be contentious,” Brandt says.

He points out that every proprietary lease states that an executor gets the same rights as a shareholder. In a recent case, Brandt was able to reach a settlement with a board that was vehemently opposed to a deceased shareholder’s executor staying over. “In the end, we came to an agreement with the building, which allowed my client a prearranged number of overnights in which to clear out the apartment,” Brandt says, enabling them to avoid the additional expense of staying in a hotel while they prepared the estate.  

In fact, every lease makes clear that wherever the term “tenant shareholder” or “lessee” appears, it also means executor or administrator. “The executor gets exactly the same rights as the shareholder and the board cannot impose a limitation,” Brandt says. 

It does, however, mean the executor is responsible for the maintenance and any unpaid fees.

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