My mother died and her board won't let me stay in her co-op while I wind up her estate—can I challenge this?

“These situations are very common,” says Ian Brandt, partner at the real estate law firm Wagner Berkow & Brandt. “Not only is an executor or administrator of the will dealing with the unfortunate death of the shareholder but often they are coming to New York from out of town, only to be told by co-op management that its board has authority to deny their use of the dwelling.” 

Brandt says you can successfully challenge a co-op board that won’t allow an estate administrator or executor to stay in the co-op apartment while the estate is wound down. In fact, every co-op proprietary lease has a built-in right to allow an executor to do just that. 

“It’s not discretionary—the board has no power to say ‘no’ to this. Executors have statutory authority to take possession of the decedent’s real property to administer the estate and co-op proprietary leases recognize this,” Brandt says. 

The power of the co-op board

Co-op boards in New York City are known to have considerable power. Even though there are efforts to make the process more transparent, boards can still reject a potential buyer without giving a reason. They can also deny your renovation plans and decide whether or not you can refinance. 

However, co-op boards have no authority to deny a shareholder’s executor access to fully use the apartment for dwelling purposes while it is being cleaned out and prepared for sale, or getting it ready for transfer to another family member, depending on the wishes of the decedent. “Providing an executor with a finite but reasonable number of days in which to get the work done should not be contentious,” Brandt says.

He points out that every proprietary lease states that an executor gets the same rights as a shareholder. In a recent case, Brandt was able to reach a settlement with a board who were vehemently opposed to a deceased shareholder’s executor staying over. 

“In the end, we came to an agreement with the building, which allowed my client a prearranged number of overnights in which to clear out the apartment,” Brandt says, enabling them to avoid the additional expense of staying in a hotel while they prepared the estate.  

Every lease has this provision

In effect, an executor with keys to the shareholder’s apartment could access the apartment without consulting the board. However, this move will likely be challenged. 

In fact, every lease makes clear that wherever the term “tenant shareholder” or “lessee” appears, it also means executor or administrator. “The executor gets exactly the same rights as the shareholder and the board cannot impose a limitation,” Brandt says. 

It does, however, mean the executor is responsible for the maintenance and any unpaid fees.

“It’s a game-changer for anyone who is struggling to wrap up a relative’s estate as efficiently as possible with the least expense incurred,” Brandt says.

Ian Brandt is a partner at the New York City real estate firm Wagner, Berkow & Brandt. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Ian an email or call 646-780-7272.