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Can I be evicted from my New York City condo?
“While a co-op shareholder can face eviction through NYC Housing Court, there are no similar proceedings in a condominium, and I’ve never seen condo bylaws that provide for an eviction,” says Steve Wagner, a real estate attorney and partner at the Manhattan law firm Wagner, Berkow & Brandt.
Co-ops and condos have completely different legal frameworks—in a co-op, you have a proprietary lease and in a condo, you have real property, namely a deed. “Eviction requires that there be a landlord-tenant relationship, or a relationship as defined in the statute and ownership of a condo does not fall into that category,” says Wagner.
However, that’s not to say your condo board doesn’t have any leverage over you, so it’s important to know the extent of that and your rights as a condo owner.
Fines and injunctions
“If someone is violating the rules of a condo building, it is not unusual that communications have already broken down with the board, so much so that the board is willing to spend money to litigate, whether that’s to fine you or enjoin you from doing whatever they find objectionable,” says Wagner.
Your condo bylaws will outline your board’s ability to impose fines or seek injunctions against the behavior they believe violates the rules, whether that’s operating an acupuncture clinic out of your apartment, fencing off areas of the building, redecorating common areas or even defecating in the building’s common space, all of which Wagner’s firm has dealt with.
“If your board gets an order from a court enjoining your conduct, your continued failure to comply with the bylaw that was violated could result in monetary penalties and arguably even imprisonment,” says Wagner. However, the consequences would not result in eviction.
“Once you got out of jail, you’d be able to go right back to your apartment,” says Wagner.
In cases where there is conflict between a condo board and an owner, the board will likely hire a lawyer, so you’d be well advised to retain your own attorney to negotiate what’s called a conditional agreement.
“Both parties are involved in drawing up what is essentially a probationary agreement in which you don’t have to admit wrongdoing, but must agree not to violate the bylaws again,” says Wagner. “Afterward, there will be a period of time in which you can redeem yourself. If during that probationary time, the violations continue, the board can take legal action against the current violation as well as the prior one.”
The goal here is to avoid expensive litigation. “That’s costly for you and your building and in some cases can be charged back to you, the condo owner,” says Wagner.
It’s worth finding out if there are legal fee provisions in the condo bylaws to establish who will pay your attorney if you are successful in your challenge. (Wagner is often hired by boards to help them modify the legal fee provision to shift the responsibility to the condo owner if the board takes successful legal action against an owner.)
If you decide to stand your ground, a lawyer can help you contest actions imposed by a board that are outside their authority.
“For example, if a fine imposed by a board does not approximate the damages for costs incurred, a lawyer can argue the fine is punitive and therefore unenforceable by law,” says Wagner.
Legal representation will be necessary to negotiate a settlement in cases of board overreach. Wagner recently settled for a co-op owner who was being charged a daily fee of $1,500 because renovation work to his apartment was not completed within a particular time frame, even though the reason it was delayed was partly due to the building’s structural issues, made apparent when walls were opened up.
“By the time everything got resolved, the damages were in excess of $300,000. I sent [the board’s attorney] cases to show courts had previously found $1,500 per day to be an unenforceable penalty. We negotiated a settlement that was well below the $1,500 per day figure and which also excluded time that the project was held up due to delays in repair of the structural damage,” says Wagner.
Renter’s rights are different
If you are renting in a condominium building, you can be evicted by the owner of the apartment.
“Typically eviction in these cases happens as a result of a default in the payment of rent,” says Wagner.
New York City real estate attorney Steven Wagner is a founding partner of Wagner Berkow & Brandt, with more than 30 years of experience representing numerous co-ops, condos, and individual owners and shareholders. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Steve an email or call 646-780-7272.
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