New England Condominium September 2019

September 2019 NEWENGLANDCONDO.COM Removing a disruptive, abusive, non- paying, or otherwise problematic tenant from a rental building is relatively easy. Doing the same thing in a co-op is also possible, though substantially harder. But removing a condo owner from the prem- ises (and effectively wiping out his or her equity position as a member of the con- dominium association) is very difficult indeed, and subject to very narrow legal interpretation – yet is doable under cer- tain circumstances. While theoretically a co-op sharehold- er could be evicted for non-monetary is- sues (prolonged patterns of harassment; ceaseless petty litigation against neigh- bors or the cooperative corporation; and criminal activity are a few examples), the same is virtually impossible in a condo- minium setting. Condominiums are pure real estate, not shares in a corporate enti- ty. As a matter of fact, from a legal stand- point, even the word ‘eviction’ cannot be used relative to removing a condo owner, though it can be applied to removing a rental tenant in a condominium unit—a point we will return to later. The closest we can come to a legally recognizable term for this type of action is a removal. Generally speaking, points of law on this subject are consistent from state to state with only slight variations. The im- portant distinctions relate to whether the person being removed is the owner of a unit, or that owner’s tenant. In both cases, laws are consistent on the most basic mat- ters. Some states’ statutes have slightly differing approaches and nuances, a point we will return to later. Removing a Condo Owner Julie Schechter is a partner at Arm- strong Teasdale, a law firm based in New continued on page 6 While the ‘Green New Deal’ and other long-term climate solu- tions are being debated at the federal level, some states and mu- nicipalities are getting in on the action as well, setting legal emissions benchmarks that will have a real impact on the lives of multifamily community residents – including those in co- ops, condos, and HOAs. For example, New York City passed the Climate Mobilization Act in May of 2019, set- ting emission caps on buildings larger than 25,000 square feet be- ginning in 2024, with the goal of an 80 percent reduction in total emissions by 2050 – the year scientists warn will be a point of no return if we fail to drastically reduce carbon emissions and curb climate change. Writing for The New York Law Journal , William D. McCracken, a partner with the New York City-based law firm Ganfer Shore Leeds & Zauderer, makes the case that at- torneys are well-situated to help association boards understand – and abide by – emis- sions standards that may seem intimidating at first. He notes in the piece: “Lawyers are fiduciaries, and they have an obligation to help their clients avoid a nightmare sce- nario wherein a building fritters away the next few years \[and then\] finds itself seeking a building permit behind 37,000 other properties, using unproven or incompetent pro- fessionals because its preferred choices were fully booked long ago, and incurs million- dollar fines year upon year.” New England Condominium spoke with McCracken about the responsibilities of attorneys outside of New York City in regard to their clients’ energy emissions; their general ability to act as climate stewards; and the root of his own personal interest in environmental issues. We also checked in with other attorneys to discuss what they feel their roles will be in all of this going forth. Community associations are micro- cosms of democracy, run by an elected board of volunteers trusted to make good decisions on behalf of the community as a whole. Boards make the call on every large and small issue for their constitu- ency. So it’s not only imperative that these members are carefully vetted and select- ed, but that during transitions of power from one board to the next, members with more experience help ease in the newcomers to shorten the learning curve and smooth the transition. Board transitions usually happen after elections at the annual association meet- ing (often in smaller communities, the same people will be elected or appoint- ed to the board year after year, which in the absence of formal term limits is not necessarily a bad thing). But they can also take place when a board of owners or shareholders in a new development takes the reins from the sponsor or land- lord. There are nuances unique to these individual scenarios, but all involve new members acclimating to their roles and relying on the expertise of those who pre- ceded them. Continuity Is Key It’s pretty rare to see the constitution of a community association board change completely from one election to the next. Unless there’s major upheaval – usually as a result of some type of scandal – at least a few board members will be holdovers from the previous administration. “A staggered board tends to work best,” says Claudine Gruen, Vice Presi- dent at Garthchester Realty, which has offices in Forest Hills and Scarsdale, New York. “In many buildings, the same board remains year after year, as the members all seek re-election. In my opinion, you want at least a majority of board mem- bers to return so that they can catch up new shareholders, as well as any first- time members. Those new members can also review monthly reports and minutes from the previous year in order to bet- ter understand what the prior board had The Advocate New England Condominium: Outside of the passing of the Climate Mobilization Act, what compelled you to consider attorneys’ involvement in environmental issues, on behalf of their clients? William McCracken: “I worked on the environmental law journal in law school, so my interest in the area goes back years. I Climate Legislation and Emissions Issues How Attorneys Can Advise Boards BY MIKE ODENTHAL Removing a Condominium Owner A Complex Legal Process BY A J SIDRANSKY Board Transition Switching Smoothly From Old Board to New BY MIKE ODENTHAL 205 Lexington Avenue, NY, NY 10016 • CHANGE SERVICE REQUESTED continued on page 6 continued on page 9 THE CONDO, HOA & CO-OP RESOURCE CONDOMINIUM NEW ENGLAND