Laws, and the legal decisions that support and enforce them, are constantly evolving and can affect every facet of community life in HOAs, condominiums and co-ops. While law and legal cases can emanate from any of our three levels of government – federal, state or local – most of the developments that affect housing come from the bottom up, with local and state law often defining or redefining what co-op, condo, HOA, and even owners of rental housing may and may not do within the law.
Much of the legislation and case law pertaining to housing derives from the federal Fair Housing Act, which was signed into law by President Lyndon Johnson in 1968 around the time of the civil rights movement. The law exists primarily to protect against race-based discrimination in housing, but it has gone on to represent and promote a much broader range of principles.
Aside from non-discrimination, housing law and legislation also deal with safety, equity, and the ability of local governments to tax real estate owners. This type of legislation and specific case law more than likely originates at the local and state level. Often as a result, individual statutes and cases apply to specific localities. A decision handed down in a New York court may not affect communities in Massachusetts, though a similar case could result in a similar decision in more than one locale. Similarly, a statute may apply to a co-op or condo in one city and not in the neighboring one, resulting in different requirements literally a few miles apart.
Some Recent Examples
According to Mark Hakim, a community law attorney with the New York-based firm Schwartz Sladkus Reich Greenberg Atlas: “Co-ops and condominiums are subject to more and more legislation affecting how they govern. But in a cooperative, where the apartment corporation owns the building and each shareholder lives in an apartment via a proprietary lease, many laws are applicable that do not affect condominium buildings. For example, Local Law 55 of 2018, [which addresses] indoor asthma and allergen hazards in residential dwellings, as well as pest management, went into effect as of January 19, 2019. It applies to all multiple dwelling property owners, which includes co-ops. This law requires the owners to investigate and remediate indoor allergen hazards such as mold, mice and rats, and cockroaches. When it comes to mold, the new law requires contractors who perform mold assessment, remediation and/or abatement services to obtain appropriate training and proper licensing, and also establishes new minimum work standards for mold assessments and remediation activities.
“This is certainly good news intended to assist the affected individuals,” he continues, “but can place additional financial and other burdens on a cooperative corporation. While the law does provide exceptions for cooperative corporations when a shareholder and their family resides in the apartment, and does allow the cooperative to shift liability via agreement (which itself may be problematic, since as ‘landlord’, the co-op corporation is nonetheless liable to ensure that the warranty of habitability is not breached) this new law will certainly require managing agents and boards to investigate whether it applies, and to take action when it does.”