Q. I am selling my co-op apartment in part because of toxic relationships with several neighbors in my small (under 25-unit) building and also because of a negative change in my employment.
The problem is that two residents who have demonstrated deep hostility toward me are on the board (one is the president). I would not put it past them to turn down any buyers out of personal spite for me.
I also suspect that one of them has had an eye on my apartment for some time and would like to combine it with hers, if the price was right, i.e. lower than what I am asking.
Is there anything I can do to prevent them from ganging up and rejecting possible buyers? Can I ask them to recuse themselves from the decision?
A. Our BrickTank experts say there doesn’t appear to be a legal basis to ask certain board members to step aside.
However, notes real estate attorney Jeffrey Reich, all is not lost.
“Any director who rejects an applicant out of spite or out of a desire to obtain the apartment for themselves opens themselves up to personal liability for any losses suffered by the seller and, potentially, to a punitive damage award,” he notes.
Still, you'll be better served by honing a strategy to sell your place rather than setting up the grounds for a lawsuit.
Real estate attorney Steven Wagner of Wagner Berkow recommends that you first determine whether your buyer is approvable: Find out what your board requires in terms of income and assets. There may be a formula for determining the prospective purchaser’s minimum net worth or the maximum percentage of income that can be used for maintenance and mortgage.
Next step: “Find out if there is a broker who has sold several apartments in the building in the past,” he says. “This broker could help negotiate the board’s idiosyncracies and smooth over some of the problems the reader has had with the board in the past.”
The broker could also remind the board that rejecting a buyer will only serve to keep you around longer.
If your seemingly qualified buyer is rejected because your neighbor wants to buy your apartment, you could sue for breach of fiduciary duty.
“The best proof would be that after the rejection, the board member approached you or your broker with a low bid,” says Wagner.
But real estate lawyer C. Jayer Berger thinks it’s unlikely that the board as a whole will betray your trust.
“If one board member has an issue with you or a secret agenda, I doubt it would taint all the others, especially if the applicant was otherwise qualified under the building’s guidelines,” says Berger.
Indeed, a spurned, qualified buyer could file a discrimination claim against the building and the board members individually.
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