Cooperative Closings: The Board Approval Process
The board approval process is one of the key stages in the purchase/sale of a cooperative, occurring shortly after execution of the contract of sale. The sellers of a cooperative unit generally have some experience with the board approval process, having gone through the process themselves at some point. Buyers may not have a similar experience to draw upon. This article discusses the board approval process in a typical cooperative transaction. It should be emphasized that every cooperative board operates slightly differently. In addition, while there are several standard clauses that deal with the board approval contingency, such a clause is nevertheless subject to negotiation between the parties, and an attorney should be consulted regarding any specific transaction.
Many contracts contain a board approval contingency clause. This renders the contract of sale “subject to” the consent of the Corporation. If the consent is not given, then the contract is terminated and the buyers receive the return of their down payment without penalty. If, on the other hand, consent of the Corporation is granted, the buyers must proceed with the purchase of the property. Buyers typically have a number of hurdles to jump in order to properly comply with the board approval requirements. Buyers must proceed in good faith to promptly (i) complete the Corporation’s application and provide all reasonable documentation and references requested by the Corporation supporting the application; (ii) pay all applicable fees and charges ordinarily imposed by the Corporation on the applicants; (iii) attend one or more personal interviews as requested by the Corporation.
Buyers may find themselves in breach of the Contract of Sale for failing to comply with such requirements. This can happen where a buyer fails to submit the board application promptly (often the contract requires a completed application to be submitted within a certain specified timeframe, such as within 10 days of receipt of the signed contract of sale, or within 3 days of the receipt of a loan commitment letter or the deadline to obtain a loan commitment letter). While such a timeframe may seem easily attainable, submissions are often delayed during the process of collecting financial information from various sources, whether by the sheer volume of information requested in the application process, securing letters of recommendation, or collection of other documents required by the board. A buyer may also be in breach for failing to provide all the reasonably necessary follow up documents, such as income verification, employment references, or for failing to attend a scheduled board interview. If a broker is involved in the transaction, this is an area where an experienced broker will provide useful guidance and assistance. Buyers are encouraged to contact the broker to discuss the board approval process in further detail.
One note of caution: the board approval contingency clause in many contracts will only be satisfied, and a buyer required to proceed with the purchase, where the Corporation grants unconditional consent to the buyer. Often a Corporation, in an effort to protect its financial interests in what it may deem a potentially risky transaction, will impose a condition on a prospective buyer, such as a requirement that the buyer place the equivalent of several months’ maintenance payments in an escrow account held by the Corporation. Unfortunately, these conditions may only be made explicit to the prospective buyer during the interview process. Buyers are therefore cautioned not to commit to any conditions that may be presented by the Corporation without first discussing the matter with his or her attorney.
Keys to Success for Brokers and Clients Dealing with Self-Managed Buildings
Many small buildings, especially in challenging financial times, prefer to save on the expense of retaining an outside management company. Often in such instances, unit owners perform some of the building related tasks, ranging from maintenance of the building to accounting and record keeping services.
Such self-managed buildings pose unique challenges to brokers and attorneys since often there is no centralized person to contact for information or questions which commonly arise during the course of a real estate transaction.
During the lending bank’s due diligence in the mortgage approval process, it may be difficult to locate the correct building representative to properly answer questions. In some of the buildings, particularly the smaller ones, the notes of minutes are scattered or unavailable. The problems may multiply if the banker involved is not experienced in New York Cooperatives and the building is not already on any approved bank lists. It is important to have the bank submit its questionnaire as soon as the offer is accepted to help determine if the bank will lend in the building. A broker or client who forgets this step can find themselves in a situation where the buyer is initially approved but right before closing the bank raises an issue preventing the loan such as insufficient reserve funds or inadequate insurance.
Recently we saw an instance where a building did not answer the bank’s inquiries regarding the building’s insurance program despite repeated requests by the banker. We assisted the building in securing an insurance broker to obtain adequate insurance so that the sale could proceed.
Often such buildings have only unaudited financials, or worse yet financials done on excel spreadsheets with no accountant opinion at all. In those instances, lawyers and brokers must carefully guide the process through the buyer’s bank to avoid an unnecessary underwriter denial.
In another instance a small self managed building could not find a corporate resolution to support their flip tax which they had been assessing for years. Unbeknownst to the building, the flip tax resolution had long since expired. By working with the brokers and the building to research the issue, we discovered that the flip tax had lapsed. By being proactive, we were able to ensure that the closing proceeded without a hitch, and of course the clients were thrilled to avoid paying the flip tax.
As any broker who has ever worked with our firm will attest, we continually strive to take the additional steps to keep deals on track especially with self-managed buildings, and we communicate with brokers, in particular during challenging points in the transaction, to help keep clients happy and well informed.
NYC Real Estate Attorney’s Closing Report: August 2015
A few of our recent closings include:
| 120 Greenwich Street, NY, NY | $702,500.00 | Condo Purchase |
| 60 Remsen Street, Unit, BK, NY | $1,415,000.00 | Coop Purchase |
| 60 Pineapple Street, Brooklyn, NY | $2,500,000.00 | Coop Sale |
| 140 Seventh Avenue, NY, NY | $1,388,888.00 | Condo Sale |
| 100 West 119th St, NY, NY | $1,300,000.00 | Condo Purchase |
| 81 Ocean Parkway, Brooklyn, NY | $455,100.00 | Coop Purchase |
| 225 Park Place, Brooklyn, NY | $770,000.00 | Coop Purchase |
| 201 East 36th Street, NY, NY | $825,000.00 | Condo Purchase |
| 100 W 39th Street, NY, NY | $780,000.00 | Condo Purchase |
| 225 East 57th St, NY, NY | $450,000.00 | Coop Purchase |
| 108-112 Third Avenue, NY, NY | $3,280,000.00 | Condo Sale |
| 52 East End Avenue, NY, NY | $1,175,000.00 | Condo Purchase |