DESCRIPTION: It’s unusual for someone to move into a co-op when the board hasn’t approved them, but in the world of affordable housing, it can happen.
AUTHOR: Massimo D’Angelo, Adam Leitman Bailey
It’s unusual for someone to move into a co-op when the board hasn’t approved them, but in the world of affordable housing, it can happen. How so?
I’m general counsel to a small co-op on the Upper East Side. It’s an HDFC co-op, a form of affordable housing. These co-ops have a regulatory agreement with the city’s Department of Housing Preservation and Development that includes an explicit provision requiring the building and board to assent to a temporary relocation of a family from another affordable-housing building.
And that’s what happened here?
There was an elderly woman living in an affordable-housing building in the West Village that got a vacate order after the electrical system broke down. All the other residents moved elsewhere, and this woman moved into my client’s building. She was supposed to leave within 30 days after her building received a temporary certificate of occupancy. Fast forward to now, more than 10 years later, and she’s still there.
So she stayed in your client’s building for a decade?
Yes, and she was a nightmare tenant. Her son was a known drug dealer who had been arrested several times outside of the building. She also lived with a significant other who at one point tried to commit suicide by jumping off of the back of the building. He ended up disabled and in a wheelchair and continued to live with her. He became deranged and was making loud noises at all hours of the night. This is a building with families and small children, so it was especially disconcerting.
What did the board do? They must have been besides themselves.
They had hired several lawyers who started landlord-tenant proceedings to evict the woman and her occupants, but they didn’t succeed in court because she was elderly, had been displaced and was the tenant of record. New York judges are very tenant-friendly. The lawyers were forced to enter into probationary agreements whereby she would continue living in the building.
So they hired you, and you took a different approach?
I saw the prior potholes, so to speak, and developed a novel theory in which I actually sued the HPD in State Supreme Court for unlawfully taking my client’s property and preventing the board from using it as they see fit, thereby violating the building’s constitutional 14th Amendment rights.
The HPD ultimately realized that there may indeed be a constitutional violation here, and that they could be facing stiff penalties if they lost in court. They immediately asked to resolve the situation. After several rounds of negotiations, we were successful in having this tenant moved out of the building to another HDFC co-op in Upper Manhattan.
What’s the takeaway for other HDFC boards that might have to go through such an ordeal?
You really have to be vigilant and know your rights with respect to your property. That way, you can use the proper legal grounds for dealing with problem tenants.