Q&A: When a Shareholder Falls Ill

Q My ex-[husband] owns his co-op but has become diagnosed as mentally incompetent after a stroke. He is in arrears on maintenance and the co-op is seeking to evict him. He will be homeless. Also if the co-op takes his apartment, will they be required to give him the proceeds of the sale? This is a terrible situation—he can no longer work.

—Caring Cooperator

A “In the instance where a cooperative apartment corporation may exercise its right to terminate a cooperator’s cooperative shares and proprietary lease and to auction off the cooperator’s apartment,” says attorney Jeffrey S. Reich of the Manhattan-based law firm of Wolf Haldenstein Adler Freeman & Herz LLP, “ the apartment corporation’s rights to retain a portion of the sale proceeds and its obligation to turnover any excess amounts is controlled by the terms of the apartment corporation’s proprietary lease and the terms of the New York State Uniform Commercial Code. The standard form provides that should an apartment corporation terminate a shareholder’s lease and resume possession of an apartment, the apartment corporation may re-let or sell the apartment and must thereafter account to the former shareholder for any amounts received in excess of the amounts owed to the apartment corporation and other secured lienors. In order to understand the process for the sale of her ex’s apartment, it would be necessary for the letter writer to review the terms of her ex’s proprietary lease.

“The letter writer should also be aware that there may be programs available for her ex. The writer states that her ex has been diagnosed as mentally incompetent. In such an instance a guardian ad litem may be appointed by a court in order to look out for the interests of the incompetent person. The guardian ad litem may be aware of benefits or programs which may allow the cooperator to maintain his or her home and should be able to ensure that the ex’s interests are protected in the event that the apartment corporation does exercise its right to auction off the apartment.”

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