Can Co-op Boards Set Unit Prices? Fighting Market Forces in a Softening Market

Even before the arrival of  COVID, the co-op and condominium markets in New York City were softening. The pandemic has only served to exacerbate the problem. Now, market forces are flying wild, with unexpected results everywhere you look. According to some reports, prices in prime neighborhoods in Manhattan are down as much as 30%. At the same time, home prices - especially for those with the former white elephant, a swimming pool - in the New York suburbs are soaring, and new condo units in the boroughs with private outdoor space are becoming more sought-after. The questions are, how long will these disruptions last - and what if anything can co-op owners and boards do to stabilize prices?


What Sets Co-ops Apart?


As most readers are aware, unlike a condominium, a co-op apartment is not real estate in the legal sense of the term; it’s ownership of shares in a cooperative corporation which owns real estate. Ownership of said shares entitles the shareholder to occupy an apartment unit within the cooperatively-owned building, governed by a board of directors and what’s called a proprietary lease. As such, the co-op board has veto power over sales of shares and transfers of proprietary leases. Like real property, co-op units do of course carry a specific dollar value. And like real property, co-op values - and hence prices - fluctuate with the market. This begs the question: can a co-op’s board act as a buffer against falling prices in order to preserve the market value of other units? Can they realistically (and legally) decline a transfer based on a lower purchase price with an eye to protecting values throughout the building?


Is it Legal?


According to Julie Schechter, a partner at Armstrong Teasdale, a law firm based in New York, “Co-op boards are allowed to reject purchasers for any reason so long as it is not discriminatory. This includes the right to reject an application due to a low purchase price. A board’s concerns about the effect a low price might have on other apartment values is justified - however, the board also has a responsibility to be fair to individual shareholders. To be fair to the shareholder selling the apartment, the board should try to determine the current market value of the apartment, and not simply decide based upon what the board believes the apartment is worth.  Boards should be particularly cautious about rejecting an application due to a low purchase price in the current market, because the pandemic has had a significant effect on apartment sales prices in 2020.”

 

Schechter goes on to say that “The board should also consider the potential motivations a seller might have to agree to a lower price than what the board might otherwise feel is appropriate. Discounted sales happen for a variety of reasons; they often indicate an urgent situation on the part of the seller. Perhaps the sellers are scared to be in NYC during the pandemic. It could also be due to the seller’s financial situation. With so many people losing their jobs in recent months, it is possible that the sellers can no longer afford to maintain their financial obligations and need to sell immediately. Lastly, there is also the possibility that the value of the apartment has simply decreased due to the pandemic, and the [lower] offer may reflect the current value of the apartment. Regardless, the board should do its due diligence before rejecting a purchase application solely for a question of price.”

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Comments

  • The value of an apartment is determined by the market based on a variety of factors whether or not it trades at that price, and unsold apartments lingering on the market could be worse for a co-op than a low price sale that is clearly attributable to a distress situation. Though co-op’s have a right to reject sale and don’t have a right of first refusal like condo’s, there’s nothing to stop them from helping a shareholder in distress by buying the apartment on better terms for the shareholder who avoids a broker’s commission. At the same time the co-op can benefit by keeping the apartment off the market , perhaps sharing in the savings from having no commission and using historically low interest funds either from reserves, lines of credit that often accompany their mortgages or a low interest loan. They can then rent out the apartment to cover its debt service, use it as a community facility and re-sell it in a more favorable climate.