Can They Make That Rule? Co-Op and Condo Boards’ Authority to Promulgate House Rules

Cooperative and Condominium Boards have broad authority when it comes to making House Rules governing the activity within the community.  This authority derives from the governing documents of the cooperative or condominium, such as the by-laws.  House Rules may cover a wide range of topics from noise and odor levels, to the keeping of pets, to the conduct of owners and guests.

Unless there is a specific limitation on the board’s authority to make rules, such as requiring the rules to be “reasonable,” boards are generally given a high degree of deference in the rules they create.  If the board is acting in good faith, courts will tend not to second-guess them. Furthermore, these rules are usually binding without the consent or approval of the owners.

There is, however, one strong limitation on the authority of boards to make House Rules.  The board cannot attempt to modify the contractual rights of apartment owners through the promulgation of rules.  House rules cannot change, amend, or contradict what is contained in the by-laws, proprietary lease of a co-op, or condominium declaration. 

So if you find yourself asking, “Can they make that rule?” The answer is they probably can. 

Appraisal cost / quality prevents deficiency judgments in foreclosure

No the banks are generally not so nice about giving away their money; so one would wonder why they don't always pursue a deficiency judgment after a foreclosure auction.

The reason is that the bank has the primary burden of establishing the fair market value of the property at or about the time of the foreclosure auction pursuant to the RPAPL's section 1371 in order to get a deficiency judgment.

To accomplish this task the bank must hire an appraiser and, still more, a quality appraiser who produces an appraisal report that has evidence beyond a conclusory affidavit.

In such, the appraisal should go into the different appraisal techniques available and explain why a chosen technique is appropriate. Therefore, just getting a comparison analysis does not satisfy the burden so says the Supreme Court in Brooklyn in a recent decision, Flushing Savings Bank FSB v. Bitar.

So there you have it, its not necessarily kindness, but instead a difficult legal burden that motivates a decision not to pursue the deficiency judgment.

Estate Planning - Keep the Home Again

The new expanded definition of "estate", which included jointly held property, retained life estates and interests in trusts for Medicaid recovery purposes was repealed on March 27th, 2012. Also, spousal refusal has been maintained.

These two (2) events are key to individuals maintaining real property while receiving Medicaid benefits. Nonetheless, careful planning is required and all are still advised to find a competent Medicaid planning attorney to facilitate their plan.

Now recovery for Medicaid purposes is again limited to those assets that would have passed by probate (will or intestacy), not testamentary substitutes like jointly owned property as was anticipated this year.

CE Class in East Hampton Tonight - Conflicts of Interest

Real Estate Agents - Just a few seats recently opened up, fill them by clicking here.

Fed Reserve Bank of NY - Percent in Foreclosure by Zip Code

To see the foreclosure percent throughout the Tri-State Region, click here.

The maps also show percents for 60 / 90 days in default.

Local Zoning Amendments Banning Fracking are Permitted

A recent case decided in Tompkins County ruled that local zoning amendments banning all activities relating to hydrofracking were not preempted by the Oil, Gas, and Solution Mining Law (OGSML). So, municipalities can ban fracking in their territories.

In the Tompkins County case, the Plaintiff, a company engaging in exploration of land for hydrofracking, brought an action against the Town of Dryden attacking their zoning amendment which banned hydrofracking. The Court determined that the State’s OGSML did not prevent the Town from creating local zoning ordinances banning hydrofracking.

This decision is particularly important because many NY municipalities have been amending their zoning regulations in response to their resident’s concerns about hydrofracking.

Remember to always keep yourself apprised of local zoning amendments in order to ensure the latest developments in your municipality because laws and regulations in real estate may change daily.

For further information about the case, see Anschutz Exploration Corporation v. Town of Dryden, 2012 WL 556172, Slip Op. 22037 (2012).