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Q&A: Criminal Activity in Condo/Co-op Unit: What Should the Board of Managers Do?

By: Adam Leitman Bailey, Colin Kaufman & Rachel Sigmund

June 1st, 2014

Q: When a condo/co-op board of managers becomes aware that a resident or tenant has committed a crime inside his or her unit (e.g., illegal drug sale), what actions should the board take?

A: First, the board should report the alleged illegal conduct to the police, making clear that the board has no actual knowledge of the alleged illegal conduct. This will avoid any allegation that the board is condoning a “disorderly house” (discussed below), which could expose the board to administrative liability. Additionally, reporting the alleged illegal use to the police is defensively advisable in a personal injury or wrongful death lawsuit that may arise from the illegal use (e.g., from drugs sold and/or used on the premises). Finally, filing a report with the police is a performance of a civic duty. The board may request that the building’s managing agent file the report. The report should be made to the appropriate New York Police Department precinct or, if drugs are involved, to the NYC Drug Hotline at 1-888-374-3784.

Second, the board should make sure that the condo/co-op’s guest policy is followed by all residents and tenants. Guests should be required to sign in upon arrival and to sign out when leaving the building, and should be required to show identification to the concierge. Also, details of all deliveries (date, apartment number, etc.) should be entered into the building’s online management system, if available, or in the super’s/doorman’s log if no electronic management system is in place.

Third, the board should make sure that security cameras are present within the building’s common areas and immediate outside areas. The cameras should be linked to a recording system as well as monitored by building personnel when on duty.

Q: What are the civil penalties, if any, for a board’s failure to respond to criminal activity within the building?

A: New York’s “bawdy-house” laws (New York Real Property Actions and Proceedings Law (“RPAPL”) §§ 711(5) and 715) applies in the landlord-tenant context—which includes co-ops because they operate under a proprietary lease—to hold a landlord liable for a “disorderly” premises where the landlord is in control of the premises and aware of certain activities therein (e.g., prostitution or other illegal business). A finding that the premises are “disorderly” can entail substantial civil penalties and attorney’s fees.

RPAPL Section 715 sets forth the grounds and procedure where the use or occupancy of a property is illegal. It provides that any “owner or tenant” of a premises “may serve personally upon the owner or landlord of the premises [being illegally used or occupied], or upon his agent, a written notice requiring the owner or landlord to make an application for the removal of the person so using or occupying the same.” Thereafter, if the owner or landlord (here, the co-op board) fails to make the application within five (5) days “or, having made the application, does not in good faith diligently prosecute it, the person, corporation, or enforcement agency giving the notice may bring a proceeding under [RPAPL § 715] for such removal. . . .” In such a proceeding, both the person in possession of the property being used or occupied for an allegedly illegal purpose and the owner or landlord (here, the co-op board) would be named as respondents in the proceeding. Thus, a co-op board should diligently pursue any application it receives from an owner or tenant to remove a person illegally using or occupying a unit within the co-op.

Alternatively, if a co-op board is aware of the illegal use or occupancy, it should not wait until receiving an application for removal from an owner or tenant. Instead, the co-op board should immediately sue to evict the person under RPAPL Section 711(5). This section allows a landlord (or here, co-op board) to evict someone if the “premises, or any part thereof, are used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business.”

Lastly, a co-op board that does not respond to known criminal activity within the co-op may be found liable under New York’s Real Property Law Section 231. This section provides that a lease is void where the leased premises are used or occupied for an illegal purpose, including “any illegal trade, manufacture or other business. . . .” If the landlord (or here, co-op board) “knowingly permit[s]” the illegal activity within the premises, it “is liable severally, and also jointly with one or more of the tenants or occupants thereof, for any damage resulting from such unlawful use, occupancy, trade, manufacture or business.”

Q: Can a board be held criminally responsible if it does not report the alleged illegal use or occupancy to the police?

A: Under federal law, it is a crime to fail to report a felony to the authorities if the failure to report is accompanied by some active act of concealment of the underlying crime (18 USC § 4 “Misprision of Felony”). New York does not have a directly analogous statute, but Penal Law Section 205.50, et seq. (“Hindering Prosecution”) defines rendering criminal assistance to a felon to include “[p]revent[ing] or obstruct[ing], by means of . . . deception, anyone from performing an act which might aid in the discovery or apprehension” of the criminal. Thus, it is clear that merely knowing about the commission of a felony and the identity of the felon and then failing to advise authorities is not a crime in itself. Therefore, a board that merely has knowledge of a resident or tenant engaging in illegal drug use in his or her unit, for example, cannot be held criminally responsible if it fails to report it to the police. Of course, however, as previously discussed, the board should report the illegal conduct as soon as possible to the appropriate authorities both to avoid civil liability and as a civic responsibility.

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