Sheryl Nance-Nash in Board Operations on June 6, 2013
"In the next one to three years, gun control is likely to be a big issue for boards," predicts attorney Bruce Cholst, a partner at Rosen Livingston & Cholst. "In the wake of the recent shootings, a few of our clients have asked questions about their rights and responsibilities," says attorney David Ostwald, a senior litigator at Schechter & Brucker.
"This is the forefront of a trend," observes Cholst, who notes that gun control raises myriad issues. Boards have support from the local government, too. There is a tough new state law that severely restricts gun purchasing and ownership in New York (on top of already-stringent city laws).
But taking on gun control poses challenges. "The issue is really a debate about boards representing the best interest of owners versus privacy," says Stacey Patterson, of counsel to the law firm of Herrick, Feinstein.
Gun Control: The Basics
One of the first questions co-op boards may have is whether it can even ask about gun ownership during the admission process. The answer is yes. "A board can ask about gun ownership at any phase of the admissions process, including on the application and at the interview," says Ostwald. "Gun owners are not a protected class under the applicable laws prohibiting discrimination."
In fact, a potential buyer can be rejected because of gun ownership. Most proprietary leases and occupancy agreements, as well as New York case law, give the board broad discretion to reject the transfer of a co-op apartment "for any reason or for no reason," provided there is no discrimination against a member of a protected class, says Ostwald.
And Second Amendment rights, so often cited by gun advocates, are not a factor, say attorneys, who note that the amendment deals with the federal government's rights to restrict ownership — not the rights of those in privately held corporations.
So, if your co-op board decides that it wants to establish a policy regarding gun ownership, how best to proceed? "It's perfectly legitimate for a board to ask what it likes. Don't beat around the bush," says Cholst.
Condominiums in the Crosshairs
Yet while the board can regulate apartment use in a co-op, it is restricted in what it can do in a condo. Condos are considered real property and each resident owns his or her space. A co-op, however, is a corporation that owns the entire building, granting the resident (who has shares in the corporation) a lease. The board has much greater authority to restrict gun ownership in a co-op.
That said, should boards take steps to regulate gun ownership? And what steps can they take? Many experts say the time may be here. But even if you can impose rules, many point to an underlying philosophical question: restricting what a person can do in his or her apartment is controversial. "How far can the board go in regulating an occupant's life within their own home?" asks Cholst.
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