Some residents in our building refuse to let management in to do inspections or make repairs. The rest of us always give access when needed, so shouldn’t they?
Yes, says Bonnie Reid Berkow, a NYC real estate lawyer and founding partner at the firm Wagner Berkow.
“The governing documents of your condo or co-op require all unit owners or shareholders provide access when repairs are needed or violations need to be fixed,” explains Berkow. “Your building’s staff is required to give residents reasonable notice that they’ll need access to units, unless it is an emergency, in which case no notice is required.”
What constitutes an emergency?
“An emergency really needs to be something that is so urgent, such as a fire, that there is no possible time to make a phone call or otherwise notify the tenant, shareholder, or unit owner,” Berkow explains.
An example of a non-emergency situation is if you’re an owner doing a gut renovation, and the board or management suspects you’re not complying with your building’s alteration agreement, or that your work involves possible building violations.
Even if an inspector from the Department of Buildings visits in response to a complaint, “the building is at risk if they open the apartment door and let the inspector in without notifying the unit owner,” Berkow says. “The building might claim it is an issue of life, health, and safety because it involves a possible building violation, but if there is no immediate urgent need for access, reasonable notice should always be provided.”
An emergency caveat
Even in an emergency, though, the super or management still needs to make an effort to contact residents before entering their apartment.
Berkow recalls a famous case in which a resident had a large number of cats in her apartment. After a big hurricane, the woman went upstate to help rescue animals, leaving her cats at home.
“After a couple of days, people complained about the smell,” Berkow says. “The super knocked on the door, and when nobody answered, they broke the lock and took the cats out.”
The resident successfully sued for unlawful entry and detainer, “which provides for treble damages and attorneys’ fees. The court held that the building had her cellphone number, and all they had to do was to call her to give her notice that they were going in.”
How much notice needs to be given before accessing an apartment?
If access to an apartment is needed from a tenant in a rental building or the shareholder/proprietary lessee in a co-op, building management should call the resident first. If there’s no reply, the next step is sending a letter stating the reason access is required and a proposed date and time for access, usually no less than 24 hours, Berkow says. There may be a specific notice period set forth in the lease, which should be followed.
If the resident ignores the letter, a more formal notice should follow.
“Failure and refusal to provide access after notice is a violation of the proprietary lease, and the notice should be prepared by an attorney as it may be a predicate notice to cure prior to commencing proceedings in housing court,” says Berkow.
If the resident still does not provide access to the apartment after the formal notice, a notice of termination is the next step in bringing them to housing court “to terminate the proprietary lease and evict,” she adds. “That will generally get a resident’s attention—and an agreement will be reached in court to provide the necessary access.”
If the situation is urgent and access is not provided after proper notice, you may have to go to Supreme Court on an expedited basis to seek an order compelling access. This may be required where bedbugs or another infestation is found and the tenant is not willing to provide access for proper remediation and the problem could spread to other apartments.
If a condo owner doesn’t grant access
Since a condo owner is not a tenant, they cannot be sued in housing court. The condo board would have to proceed in the Supreme Court to enforce its rights under the condominium by-laws, rules, and regulations.
Should a condo owner still not give access after a call, letter, and formal notice, “the condo will need to go to Supreme Court with an action for declaratory judgment and injunction to get the court to order the unit owner to comply,” Berkow says. “This action can be commenced by order to show cause, which will get the parties into court fairly quickly. Once in court, the parties will generally come to an agreement.”
If it’s a sponsor-owned rental
If the resident is a rent-stabilized tenant in an unsold sponsor-owned apartment, a notice should be sent to the sponsor, and the sponsor then needs to advise their tenant in writing that access is needed, Berkow says.
If that doesn’t work, “the co-op or condo would have to bring proceedings against the sponsor-owner of the apartment to compel the sponsor to commence proceedings against the tenant,” Berkow says. “Some condo bylaws give the board the power to bring an action directly against a tenant in the name of the owner to enforce the condo rules.”
New York City real estate attorney Bonnie Reid Berkow is a founding partner of Wagner | Berkow with more than 30 years of experience litigating in state and federal courts in New York state, including cases involving breach of contract, fraud and breach of fiduciary duty, in addition to real estate disputes and commercial actions. To submit a question for this column, click here. To ask about a legal consultation, send an email or call (646) 780-7272.