Can our board ban e-bikes because of the risks posed by lithium-ion batteries?
“All the indications are that lithium-ion batteries can cause fires if they are not handled correctly and a board has the right to impose restrictions on their use by amending the building’s house rules,” says New York City real estate attorney Steven Wagner, a partner at Adam Leitman Bailey, P.C. who represents tenants and apartment owners, as well as co-op and condo boards.
Depending on how the e-bikes or e-scooters are being handled by residents, restrictions may already be in place to curtail their use. For example, if a resident is bringing in e-bikes for repairs or offering charging services in their apartment, both activities would typically be prohibited by zoning resolutions and can be confirmed by the building’s certificate of occupancy.
The NYC Council is also currently considering further regulations on this issue.
However, your board can make a prohibition more explicit with house rule amendments, going as far as banning electric mini-vehicles, or prohibiting the use and charging of lithium-ion batteries.
How to ban electric mini vehicles in a co-op
In most cases, a majority of board members at a meeting with a quorum present will be enough to make changes to the house rules. A quorum is the minimum number of board members needed to validate the proceedings and in a co-op board, it might mean five out of nine members must be present. So amending the house rules to ban e-bikes or lithium-ion battery charging is easy in comparison to enforcement, Wagner says.
In order to enforce a ban you would need witnesses willing to testify about a violation and proof that electric mini-vehicles have been charged or used in spite of a ban. If the house rules allow fines for violations, the board must be prepared to send a letter to the resident identifying the infraction and outlining the consequences. You will want to provide an opportunity for the co-op shareholder to remove and permanently stop using the equipment.
To pursue a continued violation of the house rules, the board could go to housing court and claim the resident violated a provision of the lease.
“The house rules are incorporated into and treated as part of the lease so, in a co-op, a violation of the lease could result in housing court proceedings,” Wagner says.
Another route to enforcing a ban on electric mini-vehicles or the use of lithium-ion batteries would be to start a Pullman proceeding and seek the eviction of the co-op shareholder. A Pullman procedure gives a co-op board a path to removing an abusive shareholder from the building.
“If you take this route, you need to follow the procedural requirements for terminating a lease and give the shareholder facing eviction plenty of opportunities to be heard,” Wagner says. Hiring an attorney with experience in this area will put you in the best position to be successful.
“Another route would be to bring an action for a declaratory judgment and injunction,” Wagner says. This is a lawsuit filed with the New York State Supreme Court. The board would ask the court to declare that the use of the batteries violates the house rules and to issue them with a permanent injunction. Enforcing the injunction would be by contempt proceedings.
Enforcement options for a condo board are more limited
In a dispute between a condo board and an apartment owner, the board will typically want to give the condo owner an opportunity to remove and stop using the equipment.
If further violations lead to a lawsuit, a condo board is limited to an action for declaratory judgment and injunction at the state supreme court.
“There’s no option for a condo board to take a unit owner to housing court for violating the house rules but the Condominium Act specifically provides that a violation of the rules can result in an action,” Wagner says.
So a condo board could bring an action for declaratory judgment and injunction to enforce the rules.