Copyright by, and republished with permission of, Habitat Magazine.
House rules and building regulations are usually the domain of co-op and condo boards. However, boards must make sure they don’t go off the rails in promulgating rules and fines that are either disproportionate to the targeted offenses or not expressly permitted by the co-op’s proprietary lease or the condo’s bylaws. Those governing documents form a contract, which can usually be amended only by the vote of a supermajority of shareholders or unit-owners – not by board decree. So while a board’s right to adopt rules and regulations is important, it is not unlimited. Rules and regulations typically contain provisions regarding objectionable or anti-social behavior, noise, the use of elevators, the use of public areas and the like. The board cannot, by enacting a rule or regulation, alter the basic terms of the contract that the owners entered into when they purchased their apartments.
The Second Department recently released a decision which, if followed by commercial landlords, over time may signal the demise of Yellowstone proceedings. In 159 MP Corp. v. Redbridge Bedford, LLC, the Court (over a strong dissent) held that a written lease, negotiated at arm’s length by a commercial tenant, may include the waiver of a right to declaratory judgment relief – and held that such a waiver is not void and unenforceable as a matter of public policy.
A Yellowstone proceeding is, at its foundation, a declaratory judgment action. So, unless 159 MP Corp. is appealed to and reversed by the Court of Appeals, going forward commercial leases may include a waiver of the right to Yellowstone relief. Such a change would have dramatic procedural and evidentiary significance. In a classic Yellowstone proceeding, the commercial tenant is given the benefit of the doubt to maintain the status quo. Under 159 MP Corp., the historical assumptions and presumptions in favor of the tenant under the Yellowstone legal regime would no longer be available.
Copyright by, and republished with permission of, Habitat Magazine
For residents of New York City co-ops and condominiums, roof access is a cherished amenity. When that access is the exclusive right of one unit, the amenity becomes a treasure. But it’s worth remembering that private roof access is not the same thing as roof ownership. The people enjoying exclusive access to the roof are bound by various agreements – the certificate of incorporation in a co-op, the declaration in a condominium, and the by-laws, rules, and regulations in both types of buildings.
A recent court case concerning a roof terrace in a condominium illustrates two points: exclusivity may be trumped by the necessity for inspection and repair; and obstructing such work can backfire against a unit-owner.