Q. The adult son of a neighbor in my co-op building recently moved in with her. He is a registered sex offender who was convicted of molesting young boys eight years ago. This is a family building with lots of children. We are all extremely concerned about having him living in our midst.
What are our rights? Can the co-op force him to move out?
A. This question touches on one of the most difficult issues a co-op board can face: The rights of an individual versus the cooperative communities concerned regarding safety, especially that of children, says co-op and condo attorney Dean Roberts of Norris McLaughlin & Marcus.
"As is often the case, the cooperative's documents, bylaws, proprietary lease, etc., govern who may or may not live in the apartment," says Roberts. "However, if the shareholders of record reside in the apartment and the individual is a family member, the co-op's ability to limit the occupancy is limited. Assuming your neighbor's son has properly registered with the sex offenders registry and is adhering to all of his legal requirements, he is in compliance with his legal obligations."
Even so, that doesn't mean your co-op's hands are completely tied.
Check to see if there is a public school located near the building which would place him within a restricted zone and thereby compel him not reside in the apartment, says Roberts.
Roberts also suggests that "the co-op's management meet with the shareholder to see whether her son is permanently residing in the apartment or is there temporarily, so as to define the actual problem. As part of that meeting, it would be appropriate to raise the concern expressed by other shareholders and asked how your neighbor plans to address that issue."
If your co-op's bylaws provide for it, says Roberts, your board can commence a so-called 'Pullman' case and have the shareholders vote to terminate your neighbor's properietary lease--or simply use the threat of a Pullman action as leverage to encourage your neighbor to remove her son from the building.
"Although the eviction of a tenant-shareholder for allowing a registered sex offender to reside in his or her apartment is no small matter," says real estate attorney Steven Wagner of Wagner Berkow, "it pales in comparison to the risk. of having a registered sex offender in the midst of families, especially families with children."
The typical co-op proprietary lease contains a provision--almost always paragraph 31(f) in case you would like to check yours--that allows a board of directors to terminate an "undesirable" tenancy by a vote of two-thirds of the board of directors, says Wagner.
Undesirabilty is usually defined as repeatedly breaking house rules or permitting a person of "dissolute, loose or immoral character" to reside in the apartment, he explains.
"Certainly a child molester or a registered sex offender would fall into that category," says Wagner.
If your board decides to pursue eviction, it will need to work closely with your building's attorney to avoid violating your neighbor's right to due process,
"If the board votes in favor of termination, the case typically goes to housing court for eviction proceedings. It is not unusual for these cases to get settled prior to an actual eviction. The settlement would either be by removal of the sex offender or by giving the apartment owner a reasonable time to sell," says Wagner.
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