The Legal Fees Sword, by Arthur XanthosPermalink
Sounds great, right? Except that sometimes it’s the shareholder-tenant who sues the Co-op (e.g., on a claim that the Co-op has breached the warranty of habitability), and by operation of the Real Property Law it is the shareholder-tenant who will be owed the reasonable attorneys fees if he or she prevails. These shareholder initiated lawsuits usually are plenary actions in Supreme Court, take years to litigate, and the attorneys fees in question can be substantial. Our Firm's experience is that most Co-ops are willing to take that risk; thus, the boilerplate legal fees provision remains, well, boilerplate in most proprietary leases.
We believe however that serious consideration should be given to removal or modification of the legal fees provision in proprietary leases. Here is why. Assume a shareholder-tenant’s apartment is flooded due to a burst pipe from inside a wall. For whatever reason (inattentive Board, inexperienced managing agent), the apartment is not repaired for several months, and the shareholder-tenant relocates to a hotel. Disillusioned with the slow pace of repair, the shareholder-tenant repairs the apartment herself and sues the Co-op in Supreme Court for out-of-pocket expenses (the hotel bills, dry cleaning cost), the cost of repair (putting up new walls and ceiling), the damage to her personal property (furniture, artwork), a refund of maintenance payments for the period in question, and attorneys fees under the proprietary lease. The shareholder-tenant's lawsuit is based, in part, on the allegation that the Co-op breached the proprietary lease. If the shareholder-tenant prevails on her claim, she is likely entitled to attorneys fees, and the amount will be far more than the typical amount generated in the usual summary proceeding. That is because a fully litigated plenary action almost always generates significantly more legal fees than a summary proceeding generates. Worse for the Co-op, the award of attorneys fees to the shareholder-tenant (and for that matter, any award refunding maintenance payments) is almost never covered by the Co-op’s general liability insurance policy. Thus, a Co-op that has the boilerplate legal fees provisions in its proprietary lease and loses such a case will, (a) have to pay with out-of-pocket, non-insurance dollars, and (b) have to explain to its shareholders the reason for the hit to the Co-op's finances.
With no attorneys fees provision in the proprietary lease, the Co-op never faces this scenario; but must a Co-op forgo entirely the right to collect attorneys fees in all cases involving shareholder-tenants? Maybe not. Consider this: a proprietary lease that allows recovery of legal fees but only up to a specified dollar amount, say $15,000.00. In the majority of non-payment proceedings against shareholder-tenants, the Co-op will in most instances be made whole, as the legal fees generated will not exceed the specified dollar amount (i.e., $15,000.00). On the other hand, the maximum exposure the Co-op would face in Supreme Court if a shareholder-tenant prevailed would similarly be limited to $15,000.00, and most likely result in a “savings” of tens of thousands of dollars. In this light, a modified attorneys fees provision can be considered an additional insurance policy for the Co-op. We are unaware of any reported case addressing the validity of such a modified attorneys fees provision, but there is no good reason why a well-drafted limited attorneys fees provision wouldn’t be enforced in accordance with ordinary contract principles.
Noises Off, by Arthur XanthosPermalink
Co-ops are landlords, so by law they are deemed to have warranted to tenants that the premises are habitable. An unreasonably loud building obviously can make an apartment uninhabitable. But what if the ‘noise’ complained of is caused by another shareholder-tenant? Further, what if the noise is sporadic, or difficult to record or measure objectively? Such cases pose nettlesome problems for co-ops, managing agents, and their carriers, because money damages are often not the primary goal of the plaintiff. How do you resolve a claim where the plaintiff wants peace and quiet, the defendant-tenant argues that the noise is the natural by-product of a happy, busy family life, and the Co-op cannot control the noise or the plaintiff’s reaction to it?
In our practice, we have seen or suggested several, non-orthodox settlement possibilities: (1) The Co-op can pass and enforce more stringent carpeting and padding rules; (2) Subject to cost, the Co-op can invest in soundproofing materials at the ceiling, floor, or wall interfaces; (3) The parties can explore an apartment swap, or a buyout/sale; (4) The Co-op can monitor noise (via a property manager or superintendent) and assess reasonable fines based on violations of a well-defined noise policy; and (5) If warranted and authorized under the proprietary lease, the Co-op can attempt a dispossess proceeding based on the offending tenant creating a nuisance. See, e.g., Domen v. Aranovich, 1 N.Y.3d 117 (2003). Failing resolution, a strong summary judgment motion on behalf of the Co-op is imperative, keeping in mind that as recently as a few days ago the First Department kept a Co-op in a lawsuit while dismissing the offending, noisy tenant from the case! Brown v Blennerhasset Corp., 2014 N.Y. App. Div. LEXIS 188, 1-3 (1st Dept. Jan. 14, 2014).