Condo hotel: I do declare! Part 2, the others
[Continued from yesterday’s Part 1.]
In Part 1 of my idle speculative exploration of the Restrictive Declaration for Trump SoHo’s hotel condominium, we heard the property’s critics complaining that:
“The restrictive declaration is a sham, a fig leaf designed to cover up the obscene decision of allowing this monstrosity where the law clearly prohibits it,” said Andrew Berman, executive director of the Greenwich Village Society for Historic Preservation.
You see sham, I see profits
But Unit Owners clearly cannot occupy their apartments year-round. Or can they?
The Management Company. The condo hotel will be managed by a professional company whose responsibilities, in addition to the basics of maintaining the property and renting rooms, include additional compliance obligations, starting with a duty to track its residents’ comings and goings:
(d) The Management Company shall utilize a software program to control, monitor and track each Unit’s occupancy every day and provide information as to the occupancy of each Unit. Such software shall have the capacity to identify automatically the imminent and actual occurrence of any exceedence of an Occupancy Restriction, including any imminent or actual exceedence resulting from successive periods of occupancy by any combination of a natural person who is a Unit Owner and such person’s parents, spouse and unemancipated children.
Tracking occupancy is a dog’s life
Indeed, the reports have to track not just the owner but her extended family:
“Any combination of a natural person who is a Unit Owner and such person’s parents, spouse, and unemancipated children.”
‘Unemancipated” is a truly atrocious word, but nothing in contract law precludes using grammatical abominations; indeed, there is worse to come.
Get one of these if you’re not a Unit Owner
Not only must the Management Company keep a nanny eye on the condo’s occupants, under Section 3.01(a) it must send finger-wagging notices to non-Unit Owners (Sections 2.06(a) and 2.06(b)) and to Unit Owners (language posted yesterday).
What happens if, despite having these love notes slipped under the door each morning (delivered “if possible, using commercially reasonable methods”, Section 3.01(a)), the occupant does not vacate? Is she evicted? Why, no:
Why aren’t you evicting me?
(b) If there is an exceedence of an Occupancy Restriction by a non-Unit Owner: (i) the Unit Owner and the then-occupant of the Unit in which such exceedence occurred shall be given written notice of such exceedence by the Management Company; (ii) such non-Unit Owner shall be charged for its occupancy of the Unit an amount equal to two times the Rack Rate for occupancy of the Unit for each day on which such exceedence occurs and shall be responsible for payment of such charge prior to checking out of the hotel; and (iii) such non-Unit Owner shall be solely responsible for the payment of all of its costs and expenses in any administrative or judicial proceeding arising out of such exceedence.
“Exceedence.” Now that’s a hideous neologism.
It’s a hairball of a word
Once a year, the Management Company must tattle on the occupants to each Unit Owner (3.01(b)) and to the Condominium (3.01(c)):
(b) Prior to January 31 of each calendar year, the Management Company shall provide each Unit Owner with a report showing, for each night of the preceding calendar year: (i) whether the Unit was occupied and, (ii) if so, (A) whether the Unit was occupied by the Unit Owner or by a non-Unit Owner and (B) whether any such occupancy exceeded an Occupancy Restriction.
There’s a final nice clamp on the Management Company’s obligations:
3.02 The terms, provisions, covenants, obligations, restrictions, and agreements incorporated into the agreement with the Management Company pursuant to this Article 3 may not be amended, modified, cancelled or terminated without the consent of DOB.
[Admit it — you were thinking they’d just nullify these provisions, weren’t you?]
Pretty masticatory, isn’t it?
Coming to a condo hotel near you!
The Condominium itself will be the legal owner, authorized to act through its Board. It too has obligations, and some of these are the toothiest of all:
Coming for you board members, too.
We start with the Condominium required to file an audited report with DOB:
2.04 No later than March 31 of each calendar year, the Condominium shall file with DOB a report prepared by the Management Company in form and substance substantially similar to the form attached as Exhibit A (”Unit Occupancy Report”), together with a certification by an independent certified public accountant that it has conducted such reviews of the records of the Condominium and the Management Company relating to the occupancy of Units as it deems appropriate and that it has found that the Unit Occupancy Report accurately reflects the records it has reviewed. If a Unit Occupancy Report shows an exceedence of an Occupancy Restriction by a Unit Owner, the Unit Owner’s name shall be provided in such report.
Just in case DOB notices something of interest, it can check prior years:
2.05 All records maintained by the Condominium and/or the Management Company reflecting the Rack Rate and the occupancy of each Unit, including but not limited to reports by the Condominium and/or the Management Company relating to the occupancy of each Unit, (statements of each Unit Owner as to the use of its Units), all records utilized or relied upon in the preparation of such reports, and any other records relating to the occupancy of Units in the New Building (collectively, the “Occupancy Records”), shall be retained for a period of no less than three (3) years.
They can keep three years’ worth of records?
Made available to DOB:
During such period, the Management Company or the Condominium, as the case may be, shall, within ten (10) business days of request therefore by DOB or the City, make the Occupancy Records available to DOB or to another agency of the City designated by DOB at the offices of the Condominium or another location reasonably acceptable to the Condominium and DOB: (i), on no more than one (1) occasion in any calendar year for the purpose of verifying compliance with the provisions of this Declaration by an audit of such records or otherwise; (ii), at any time that there is a complaint filed with DOB or the City alleging an exceedence of an Occupancy Restriction in one or more Units; and (iii), at any time that DOB or the City believes that there may have been an exceedence of the Occupancy Restrictions by one or more Units.
What if the City, once alerted, sniffs a problem?
Yep, 29 days’ continuous occupancy, all right
It can hire a private ferret, the Independent Private Sector Inspector General (IPSIG):
4.10 (a) In the event that DOB or the City determines [investigation is warranted] … DOB or the City may, in its discretion, give notice to the Condominium directing the Condominium, at its sole expense, to retain an Independent Private Sector Inspector General a.k.a. Compliance Monitor (”IPSIG”), to be selected from a list of three to be provided by the City with such notice.
Won’t that cost the City a lot of money? Actually no, it will cost the Condominium a lot of money:
(b) The Condominium shall pay directly to the IPSIG all fees and expenses of the IPSIG in connection with the IPSIG’s performance of the needed duties, functions and responsibilities; provided that the form of billing shall be subject to the prior approval of DOB and/or the City.
Nor will non-cooperation be permissible:
Non-cooperation worked well enough for me
(d) The Condominium shall cooperate fully with the IPSIG in the review and audit of records and the preparation of the IPSIG’s reports as set forth above.
[By the way, who’ll want to serve on the Condominium’s Board? Sounds risky. – Ed.]
It all sounds very enforceable. The Management Company tracks information, the Unit Owners are apprised (and penalized), and the Condominium itself can levy charges.
You can’t lay a glove on me
The story is told of W. C. Fields being found at home by one of his friends, a drink by his left hand, poring over the Bible with intense concentration.
Deeply concentrating on his next drink
“Bill,” said the friend, “I’ve never known you to be so interested in scripture.” When Fields merely grunted, not looking up, his finger moving slowly along the lines, his friend persisted, “Bill, what are you doing?”
Growled Fields, in his inimitable voice, “Looking for loopholes.”
Found a loophole, fellas!
So I returned to the Restrictive Declaration in a Fieldsian spirit.
And I found …
[Continued tomorrow in Part 3.]
