a Unauthorized Occupants and What to Do | Pentiuk Couvreur & Kobiljak PC
Pentiuk, Couvreur & Kobiljak, P.C.
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Unauthorized Occupants and What to Do

Ok, the Cooperative setting is uniquely awesome because we love our neighbors and know who our co-members are... well, usually. But wait, what happens when we do not recognize our neighbors Not because we have not been friendly or have not introduced ourselves, but because they are not the members!

The wonderful aspect of our cooperative communities is knowing and looking out for our fellow co-members. That is why we have a selection process and an on-going occupancy requirement. This is a piece of what makes cooperative living so special. All too often some members abuse our rules to house family or friends who may not otherwise qualify on their own, or even more jadedly, may use their unit as a profit maker by unauthorized leasing. All cooperatives have some form of policy on this issue; although sometimes it is unenforced, either out of logistical difficulties or mere indifference. 

 We have these policies for a reason. When members start complaining about concerns of who their "neighbor" is, it means management or the board have not fulfilled their obligations to enforce our policies in this regard. Our firm has even heard from one client that possibly up to half of their units were occupied by non-members. This is no good. Time for a change.

The systemic lack of enforcement for months and even years has to be fixed. Merely picking units arbitrarily that are believed to be in non-compliance is probably not the right initial reaction. Although tough love and making an example out of unit in violation may send a message, but it also may put you in hot water.

First, the lack of active enforcement will be an affirmative defense by a member, often know as "waiver." The argument: "you haven't enforced this policy ever, why me?" Second, what happens if you begin to evict numerous units at once? Legal costs and empty units is not the way to keep you financially solvent. Even potentially more problematic, what about Fair Housing Laws? What happens if you select a unit that happens to have a resident of a protected class such as race, gender, or that little barking "Fifi" dog is their "emotional support animal'? Having not universally applied this rule could potentially be used against you in this case and in the future.

Boards and management should consider a more incremental approach. We have found issuing a notice to all households indicating that the lack of adherence to our residence/membership requirements is NOW going to be actively enforced. This concept works for traffic infractions. When the radio announces a warning from police that they are targeting speeding, drunk driving, seatbelts, etc; the same could work for this scenario.

Granting ALL households a short amnesty period (30-60 days) BEFORE issuing termination notices or fines creates, at minimum, an illustration of incremental enforcement that has allowed EVERYONE the same opportunity to cure any residency issues, which would require all households to provide accurate, truthful information on all unit occupants who will have to be screened and approved consistent with the application process for members and occupants. Those units who fail to avail to this amnesty period have no one to blame but themselves when further action is taken. The Board should then sleep better at night knowing they have eliminated the appearance that units have been "singled out."   

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