Schneider Buchel LLP Blog

Monday, November 28, 2016

What to Know About New York’s New Anti-AirBNB Law


We likely all know someone who scored a great deal on a far-off getaway using AirBNB.com. The website, which is wildly popular both in the U.S. and abroad, helps match potential short-term renters with a suitable home, condo or apartment.


Read more . . .


Monday, October 31, 2016

Can the HOA Limit or Prohibit Election Signage in the Front Yard?


This election season is one of the most contentious in recent memory, and Americans are by and large sharply divided on their Presidential candidate allegiance – or, not sure at all. The First Amendment provides explicit protections for those wishing to voice their opinion on the various issues, and of course allows for voters to proudly display their support for one candidate over the other.

However, what becomes of a homeowners’ association or condominium association that places restrictions – or outright prohibitions – on the placement of election-related signage in the front yard of a private residence? On the one hand, HOA’s commonly cite aesthetics as the reason for such prohibitions. On the other, residents are within their free speech rights to proclaim affinity for a particularly candidate running for office. In the end, who wins?

As with an good legal question, the answer is: It Depends.


Read more . . .


Thursday, July 21, 2016

What to do When a Resident Doesn’t like Your Co-Ops New Rules


What would you do if a member of your co-op was allowing friends, family members, and guests to stay at their apartment while they were away on long business trips? What if that member’s residence had been the subject of noise complaints in the past? Would you change the rules to prevent apartments from being occupied when the owner is not present? One Central Park West co-op did just that, and now they are being sued by their unhappy member… Madonna. 

According to the NY Daily News, the co-op Madonna is a part of, Harperly Hall, recently changed its rules to prevent apartments from being occupied when their owner is not present. Madonna is asking a court to exempt her from the new rule so other people can live at her apartment while she is on tour, or is otherwise not present.

These Lawsuits are in “Vogue”

Madonna is not the only co-op resident in New York City and the surrounding area that is upset about rule changes.


Read more . . .


Wednesday, February 10, 2016

New York Court Renders Decision on Pivotal Manhattan Condominium Association Case Involving Construction Defects

In 2015, the New York Supreme Court ruled against a construction company seeking to escape liability for building-wide defects, premising its argument on the existence of a catch-all release form signed by the company, the property management outfit, and the building’s condominium association.

 As a bit of background, the defendant construction company was hired in 2011 to transform a department store – located on the Avenue of the Americas in Manhattan – to a residential apartment building (with a retail area on the ground floor). According to the court records, the condominium association was not tasked with overseeing the safety of the property until after the renovations were completed – presumably due to the timing of the developer’s transition of leadership to the association. At this point, the association compiled a list of issues plaguing the building, some of which amounted to major construction defects including a Christmas Day collapse of several second-floor apartments into the ground-floor retail space.

After a winding journey, the parties eventually arrived before the New York County Supreme Court. At this point, the construction company produced a release – signed by the condominium association itself – stating as follows:

 The O’Neill Condominium, and all of its unit owners and each of their past or present, direct, or indirect, successors, heirs, executors, administrators, assigns, members, owners, grantees and representatives do hereby release and discharge [the construction company]…from any and all claims…for, arising out of, or in connection with the Premises, other than the (mechanics lien issues). The foregoing includes, but is not limited to…any existing or potential claims, controversies, warranties or issues relating to the construction, improvement, installation and/or design of the subject building, the common areas and/or the individual units.

 By producing this document, the court was forced to shift the burden away from the construction company defendants and onto the condominium association to prove that the release should not be honored – which it was able to successfully argue, at least past the summary judgment stage. In the end, the court opined that there were several outstanding issues to discuss in this matter, namely whether the condominium association had the authority to sign such a release on behalf of its residents, who would be effectively shut out from redressing major construction defects should the release be upheld indefinitely.

If you are experiencing a difficult situation with your condominium association, please do not hesitate to contact an experienced Real Estate attorney today!

 

 


Wednesday, January 20, 2016

What’s All the Racket?: Handling Noise Complaints & Setting Sound Guidelines

What are the best practices for a condominium association dealing with noise complaints?


When it comes to living in a condominium, it is not always easy to keep noise levels at a minimum – particularly given the fact that residents share a wall and a hallway. However, there is quite a distinction to be made between inconsequential kitchen clatter and all-out raging parties, the latter of which has given condominium boards headaches for years.

When it comes to properly managing a condominium association, one of the primary goals of the board should be the implementation and execution of policies to ensure the comfort and enjoyment of all residents. Accordingly, a well-drafted,and consistently enforced, noise policy should be a preeminent concern for any condo board operating without one, as unrelenting noise often means unrelenting resident complaints. 

Importance of a Carefully Crafted Noise Policy

One of the key components to a well-drafted noise policy is specificity, particularly concerning the concepts of “bothersome noise” or “above-average transmission of sound.” These are of course subjective notions, however noise is noise – and a policy should include some sort of objective measure to help determine whether a violation is afoot.

Moreover, noise policies may also piggyback other regulations already in place, including regulations concerning the number of “overnight guests” allowed in a particular unit. By ensuring both those policies are clear and enforceable, this could help eliminate any instances of loud, raucous parties that last into the night.

Condominium Liability

In the end, a condominium board is undoubtedly exposed to liability by failing to meet the needs of its tenants, particularly with regard to noise complaints. In one case, a condominium association was made to pay damages to a tenant forced to endure unrelenting noise and racket by an upstairs neighbor. During the discovery process, the tenant enlisted the help of a “sound transmission expert” who ultimately concluded – using objective technology and sound measuring guidelines – that the upstairs neighbor was in fact much louder than average, resulting in a claim not only against the neighbor himself but the association for failing to enforce the noise regulations.

If you are involved in condominium governance and would like to discuss your options under New York laws you should contact an attorney experienced in the field of condominium law.

Thursday, December 31, 2015

Lawsuit Filed Alleging Parking Discrimination by Condominium Association

How can we ensure ADA compliance within our condominium’s common areas?


The Americans with Disabilities Act (ADA)
was enacted in 1992 and has since undergone several amendments to broaden its scope and further hone its applicability. At its inception, one of the main targets of the ADA was the housing industry, as potential renters and buyers were often being turned away – either expressly or impliedly – due to inaccessibility and unnecessary obstacles. Since the ADA’s inception, housing units are required to install reasonable accommodations to ensure at least a portion of units – and all common areas – are accessible to the handicapped.

Earlier this month, a man living in upstate New York launched a formal complaint against his condominium complex concerning the availability of handicapped parking spaces to accommodate those who are wheelchair-bound or otherwise have difficulty walking to and from their vehicles. According to the lawsuit, the petitioner put in a request to the condominium manager to swap assigned parking spaces for one close to the front door of his building.

The man, who suffers from spinal stenosis and osteoarthritis was originally denied the request and told that he would have to remain in his assigned parking space regardless of disability. Upon reconsideration, the complex agreed to allow him to trade spaces with another resident, provided he could find a willing neighbor and would pay for the property manager to renumber the spaces. At this point, the man initiated a formal discrimination lawsuit against the complex, alleging unfair treatment and unlawful unwillingness to accommodate his disability.

In a scenario like this, a condominium association is best-advised to have procedures and protocols in place to ensure all parking areas are accessible for those enduring a disability – including sufficient handicapped parking spots, ramps and handrails leading into the clubhouse, and parking options adjacent to handicapped-accessible units.

If you are curious about the laws as applicable to condominium associations and would like to discuss the various legalities of handicapped-accessible accommodations, please contact Schneider Mitola, LLP: 212-485-9400.

Wednesday, December 9, 2015

SUFFOLK COUNTY NO SMOKING LAW OBTAINS FINAL APPROVAL By: Marc H. Schneider, Esq.

As we previously advised you, the Suffolk County Legislature unanimously approved legislation prohibiting smoking in all indoor and outdoor common areas of multiple dwelling buildings (which include Co-ops and Condominiums) and within a fifty-foot radius of all entrances, exits and ventilation intakes to a building. On December 7, 2015, the Suffolk County Executive Steven Bellone gave final approval by signing the bill. The new law will become effective one hundred and twenty (120) days after it has been filed in the Office of the Secretary of State. Once the law takes effect, Boards should make sure their House Rules are conformed to be consistent with the new law.


Wednesday, November 25, 2015

Suffolk County Smoking Regulations at Multiple Dwellings - November 30, 2015 by Marc H. Schneider, Esq.

Suffolk County appears to be formalizing the policy that many Co-ops our firm represents already have–to eliminate smoking in the common areas. In fact, many Co-ops our firm represents have taken it one step further in that they have actually banned smoking inside the apartments as well by virtue of an amendment to their proprietary lease which was adopted by the shareholders. The Nassau County Legislature has already adopted the policy of prohibiting smoking in public areas of indoor facilities and indoor areas used by the public, including common areas of multiple dwellings.

On November 17, 2015, the Suffolk County Legislature unanimously approved legislation to amend Chapter 754 of the Suffolk County Code regarding Smoking. The legislation applies to “multiple dwelling buildings,” which include any property containing ten (10) or more dwelling units, such as apartment buildings, condominium complexes, senior and assisted living facilities and long-term health care facilities. Section 4 of New York’s Multiple Residence Law defines a “Multiple dwelling” as a “dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the temporary or permanent residence or home of three or more families living independently of each other...”  It also includes “a dwelling, two or more stories in height, and with five or more boarders, roomers or lodgers residing with any one family.”

Specifically, the legislation prohibits smoking in all indoor and outdoor common areas of multiple dwelling buildings and within a fifty-foot radius of all entrances, exits and ventilation intakes to a building. “Common areas” are defined as every enclosed or unenclosed area of a multiple dwelling building that residents of more than one unit are entitled to enter or use, including but not limited to, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking area, eating areas and meeting rooms. Residents would continue to be allowed to smoke in their own units as long as it was not prohibited by the governing documents of the community. Violators could be fined up to Two Hundred and Fifty ($250) Dollars for each violation, and repeat offenders could face up to One Thousand ($1,000) Dollars in fines and/or six months in jail. The law was recommended as a result of the risks of second hand smoke. In fact, the resolution adopting the local law stated “This Legislature also finds that pursuant to a 2006 report, the United States Surgeon General has determined that there is no risk-free level of exposure to second hand smoke.” They also cited the “enormous costs associated with treating diseases caused by smoking.” 

While the legislature has approved the legislation, it must still be approved by the Suffolk County Executive Steven Bellone after a hearing. It is expected to be approved. The hearing, which is open to the public, is scheduled to occur on Monday, November 30, 2015 at 10:00 a.m. in the H. Lee Dennison Building in Hauppauge, New York. If the law is approved, Boards should make sure their House Rules are conformed to be consistent with the new law. The new law would become effective one hundred and twenty (120) days after it has been filed in the Office of the Secretary of State.


Wednesday, November 18, 2015

"The Cat is out of the Bag" by Marc H. Schneider, Esq.

Is it a crime to ignore stray animals as you pass them by? That is what a Staten Island woman named Dorothy Lee tried to argue to a Judge in a Richmond County Civil Court after Lee’s sister, a Unit Owner of a Condominium, was fined for Lee’s feeding of feral cats in a Condominium complex.  The Condominium Board first warned the Unit Owner and Lee that if they continued to feed the feral cats then they would be fined as same was a breach and violation of the Condominium’s By-Laws and House Rules.  Lee ignored the Condominium’s warning and continued to feed the feral cats. The Condominium then assessed fines and late fees for failing to pay the fines.  Lee then commenced a lawsuit against the Condominium, as she believed the fines and late fees were unjustly imposed. (See Lee v. Parkview Estates Condo., No. SCR590, 2015 WL 6872665 (N.Y. Civ. Ct. Oct. 29, 2015)). 

The Condominium’s By-Laws and House Rules were clear: feeding of feral cats was not permitted under any circumstance.  After being fined and commencing a lawsuit,  Lee attempted to avoid the fines and late fees by claiming she had an affirmative obligation to feed the feral cats and failure to do so would have caused her to violate New York State Agriculture and Markets Law §353. This law states that “A person who…deprives any animal of necessary sustenance, food or drink, or neglects, or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who willfully sets on foot, instigates, engages in, on in any way furthers any act of cruelty to any animal, or act tending to produce such cruelty, is guilty of a class A misdemeanor.

However, this law was directed at the owners of animals so that they are required to take proper care of their pets. Interestingly, Lee noted and the Court even acknowledged that the law does not state that the “animals” covered by the law must be household animals.  It simply states “animals” in general which could arguably apply to feral cats (or any stray animal).  Although the Court seemingly acknowledged the cleverness of Lee’s argument, it went on to state that “This court cannot sanction an expansion of the interpretation of the law so as to create a defense to the imposition of fines for violating a condominium rule or liability for persons who choose to be “good Samaritans”.”  The Court further stated that “to adopt the interpretation claimant is asserting, that is an affirmative duty to provide food, drink and sustenance to all animals with which a person comes in contact, would subject any homeowner to arrest for not putting food out on the chance that Garfield, Sylvester or Felix might wander onto their property looking for a meal like some impoverished Dickens character.”  The Court further stated: “Should people leave food out for the local squirrels, raccoons and opossums which visit their neighborhood on a regular basis? If they fail to do so would they be subject to arrest? To follow the claimant’s position to its logical conclusion, when I go camping I would have an obligation to leave food for the local bears. Unlike Yogi and BooBoo who might sit down on a picnic (or pic-a-nic) blanket to enjoy a meal, most of the bears I have encountered would certainly be grateful, but would more likely than not act like Oliver Twist in Mr. Bumble’s orphanage and be seeking “more.””

As such, the Court upheld the enforceability of the By-Laws and House Rules which prohibited the feeding of feral cats and Lee’s sister, as the Unit Owner, was responsible for the fines imposed.  The Court stated: “Even though the claimant and her sister had good motives and intentions, it is not a defense to their being subjected to fines and penalties for violating the condominium’s house rules.  When someone moves into a condominium they voluntarily agree to be subjected to the rules and regulations of the development.  It is actually democracy at its most basic level.  If the claimant is dissatisfied with the rules, then her remedy is to use the Bylaws to get enough other homeowners to change them.  Until that happens ownership includes compliance.  Further, as pointed out by the defendant, leaving food out may attract vermin such as rodents and which would include rats.  This would conceivably lead to penalties being assessed against the condominium for being in violation of the health code.  Unlike Disney who sees rats as potential gourmet chefs as in “Ratatouille,” the City and State of New York consider them a health problem.”The Court did however reduce some of the fines as some of the incidents cited by the Condominium occurred after Lee moved out of her sister’s Unit and some of the incidents did not have enough evidence (i.e. eyewitness testimony to substantiate the incidents).  In addition, the Court held that certain charges assessed were the incorrect amounts based upon the dollar limits in effect on the dates of the violations. 

As you can see, the Court upheld the Condominium’s governing documents and stated what is obvious to Courts, Board members and practitioners in this area of law; but that many homeowners seem to forget: when you buy into a community association, you are giving up certain rights and must comply with the community association’s documents.  If you don’t like them, you need to obtain the support needed to amend these documents.


Monday, August 31, 2015

Welcome to our Community Association Law Blog

Welcome to our new blog. We will be periodically posting articles regarding community associations of all types, including condominiums, cooperatives  and homeowners' associations.     

If you wish to subscribe to our blog to receive automatic email updates please use the subscribe feature to the right. You can also contact our firm so that we can determine how best to serve you.






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