Since 1982, Tom Soter has been an editor at Habitat magazine, the definitive publication for boards of cooperatives and condominiums in New York City.
From HABITAT, May 2011
From the Editor 29: Boards
April Fool’s Day came a day early for me this year.
March 31 began darkly. It was a rainy Thursday morning, and I was standing at the end of a line of people boarding a southbound M60 bus on Amsterdam Avenue and 122nd Street. The line moved up, the woman in front of me stepped onto the bus, and I had my hands in front of me, getting my MetroCard out of my wallet. Then, without warning, the driver closed the door on me, trapping my outstretched arms inside the bus – while leaving the rest of me on the outside. Oblivious to my situation, the bus driver started pulling the bus away from the curb.
Feeling not unlike a fish on the hook, I called out, “Hey! Hey!” – although I don’t know if the driver heard me over the roar of the motor. But all the other passengers saw me and started yelling at the bus driver to stop.
He stopped and opened the doors. And now it was his turn to yell. He berated me for “moving too slowly.” Not realizing that entries and exits were on a timer, I angrily said to the driver: “You’re blaming me? You’re saying it was my fault?” The other passengers began shouting at him. “It’s your fault!” “We all saw it!” “Don’t try to blame him!” “Why don’t you apologize!” “Take responsibility!”
The driver, not contrite in the least, said, “I did apologize” (I guess I didn’t hear it), adding, with an unfortunate turn of phrase, “It’s you folks that insist on dragging this out.”
Let’s not go there.
My misadventures with the bus are not unlike the dilemma of every board (honest!). Like the driver of that bus, the board members are going about their business, doing what they believe is the right thing, when they are suddenly caught up in a controversy. Take the Elmwood Park II Condominium in Staten Island. A judge recently determined that the board of the condominium could not fine or restrict the five senior citizens and unit-owners from sitting in the common-area lobby, where they had gathered to chat on many afternoons for 14 years. Even though the board thought it had been behaving reasonably in trying to clear out the lobby, the court saw it differently, saying the board was abusing its power.
Such “abuse” leads politicians to push “protective” legislation that variously creates an ombudsman to investigate and supervise boards or else forces them to reveal reasons for rejecting applicants. Even as I write this, the city council is considering a proposed law called the “Fair Cooperative Procedure Law” that is designed to combat “credible anecdotal evidence of instances of discrimination in certain cooperative buildings.” (Could we be more mealy-mouthed, please? “Anecdotal evidence…in certain cooperative buildings.” Does one usually create a law based on anecdotes?)
Is this a trend? Are boards overreaching? Or are residents and politicians overreacting?
“It’s often not clear when boards overreach,” veteran co-op attorney Art Weinstein said to me when I asked him the question. Then, in an unconscious inversion of Spider-Man’s famous insight, “With great power comes great responsibility,” Weinstein added, “With responsibility comes power. A board must exercise it wisely.”
On the other hand, shareholders and unit-owners must realize that, in order to operate efficiently, boards cannot be restrained by over-protective rules. “The board is also responsible for following the law,” Weinstein noted. “The board has to have the power to conduct business. If, for instance, shareholders try to limit board spending by a bylaw amendment that the board must get shareholder approval before spending money over a set amount, the board could become hamstrung in carrying out its legal responsibilities to maintain the property. They may need to spend above the arbitrary limit imposed by the shareholders, and it becomes harder to operate if they have to consult with everyone in the building on most major decisions. There has to be some trust that the board is making decisions for the good of the building. Otherwise, you can have a bad situation.”
Like being dragged away by a bus, for instance.
HABITAT, May 2011