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Reasonable or Wrong?

There were two six-story buildings side-by-side belonging to one Manhattan cooperative. Let's call them Building A and Building B. Each had its own lone elevator. Eventually, the time came to do work on the elevators, meaning that the only way of getting to apartments above the first floor was the stairs. An elderly shareholder lived on the top floor of Building A. How is that resident going to get into and out of her apartment? Without an elevator, this resident, along with other seniors living there, would probably be trapped at home for the few weeks it would take to complete the project.

Jeffrey Toplitsky, director of property management at Pride Property Management, was the manager of Building A. He recalls the solution they devised: "We couldn't escort everyone up and down for the six to eight weeks it was going to take to finish with the elevators, so instead we had a ramp built spanning across the buildings. A staff person then could escort people in Building A across the bridge to Building B, which had a working elevator. When A was finished, the process would be reversed."

When it comes to figuring out how to assist senior or handicapped residents in such situations, there is some confusion as to a board's responsibilities. Knowing the legal issues and ways to avoid problems can save boards from major headaches. The lesson begins with defining two words: reasonable and accommodations.

The Americans with Disabilities Act requires that properties make a "reasonable" effort to assist people with disabilities. Traditionally, as it applies to co-ops and condos, this has involved constructing wheelchair ramps — or making a building otherwise handicap-friendly — or allowing a seeing eye dog for a blind person in a building with a no-pet policy.

Unfortunately, what exactly a reasonable effort is has become a question of some debate. What about the 80-year-old shareholder who lives on the seventh floor and wants to be put up in a hotel for the duration of the elevator repairs? Realizing that this may cost thousands of dollars, what do you do? What are a board's legal obligations? Is this a "reasonable" request? Opinions vary.

Aaron Shmulewitz, a partner at Reed Smith, says that it would be reasonable for the elderly shareholder to expect the board to pay for a hotel stay, if needed. "I'm usually a very hard-line attorney for boards, but here you are asking to restrict someone to their room for three to five weeks. Either that or they have to move out for that time. If the person is alone and has no relatives, a board would be well-advised to look into paying for the hotel."

However, there is no rule of thumb, he adds. A board needs to look at all the facts. Who is the person? What is the situation? How would a judge look at it if, for some reason, he/she had to litigate, keeping in mind the image of "the little old lady" versus "the big bad co-op"? A board may want to avoid lots of legal fees by just providing a room.

Other attorneys disagree. "This is a difficult situation," observes Mark Bresky, an attorney in private practice. "With this kind of work, there is always a level of inconvenience, annoyance, and discomfort, but people usually understand that the benefits far outweigh the problems. A board, however, doesn't have any obligation under the law to put aging shareholders in hotels or assisted living facilities during a project. We represent a lot of buildings with aging populations, up to 80 or 90 percent of some buildings. The question arises that if you do this for one, will the rest expect the same thing? It would be virtually impossible to relocate a whole building, so you have to look at what kind of precedent you may be setting."

The majority of time, both attorneys note, the situation is resolved amicably. Rarely have boards had to place shareholders in apartments. Compromises from both sides are needed.

The big key in the hotel debate, however, may revolve around the word "accommodations." In a recent Nassau County case, Dorsoy v. Hawthorne Owners Corp., the court defined accommodations as changes in rules, policies, practices, and services. The word is not meant to refer to housing someone or finding him or her a place to live. Further, the court noted that the accommodations, or changes, being requested should not put an undue hardship on the co-op. Relocating someone to a hotel would be such a hardship, observes attorney Arthur Weinstein.

"First of all, this is a temporary situation," he notes. "If you had a hot water problem in the building, would you make arrangements for everyone to stay at a hotel until it was fixed? No. It's a stretch to think you'd have to find and pay for housing for a senior citizen." Being old does not count as a handicap, he says, adding that the same opinion holds true if the person were handicapped. "It's just not the right use of the word 'accommodation.' Other things can be done before you would even consider this."

So what are those things? The key to making an elevator project work under conditions where all elevator use is being taken away, according to Michael Berenson, president of Akam Associates, is "planning and communicating."

Communication should start long before the work does. Given that the lead time on getting an elevator system can be anywhere from nine months to a year, there is plenty of time to make residents aware of what will be happening. Generally, six to eight weeks' notice is sufficient. The responsibility, notes Berenson, is the manager's.

"The worst thing to do here is to inconvenience someone without letting them know how long it will be going on, what the extent of the project is," he warns. "This is the manager's responsibility. Fliers should be posted and [bi-weekly] notices sent out…on the status, once the project is started."

With sufficient notice, most managers say that the responsibility for finding a solution to housing should fall on the shareholder. However, if the manager is aware of a particular resident's needs, he or she can make phone calls to family or relatives to help the shareholder find an answer. Managers may also be able to

provide phone numbers for services that will aid residents when their building's amenities are compromised. Berenson says that the board is under no obligation to put people up in hotels, but does advise boards to check with their attorneys.

Where a board can help is in minimizing the disturbance as much as possible. George Johnson, president of Triboro Technologies, an elevator consulting company, says that more than 60 percent of the single-car elevator projects he has worked on recently have involved boards paying the elevator companies overtime to work six ten-hour days. "The average time for an elevator project like these is five to six weeks. With overtime, you can cut that down to three to four weeks," he notes. On a standard modernization, the additional cost is about $9,000 to $10,000.

It is also possible to "double-team" a project, having two crews work eight-hour shifts, one after the other. Johnson doesn't recommend this. Two separate teams means that the second team has to spend time figuring out what work the first one did. Styles may also differ with crews. So, while you are getting a 16-hour day, you may not necessarily be saving much time or money over an overtime schedule.

Another solution could be to do projects piecemeal, allowing for some limited use of the elevator during the project. However, most contractors refuse to do this, says Johnson.

Whether or not a board decides to pursue paying overtime for the elevator work, directors should plan on having to spend more for staff, either hiring additional help or having staff put in overtime themselves. "With a project of this magnitude, it is really important to get extra staff on," advises Toplitsky. "They can help with groceries or deliveries or security." Volunteers from the co-op could also be enlisted. Basically, it's about everyone chipping in a little extra.

Still considering a stay at the Ramada? Some boards may decide to do this as a gesture of kindness or in unusual circumstances. In such a case, Shmulewitz advises setting down exactly how much the board is going to pay and for how long. The owner may not be asking for the entire amount but a portion. It's important to remember, though, that either way it is money coming out of the co-op's pockets. Bob Mackoul, an insurance broker and president of Mackoul & Associates, says it is unlikely insurance would cover rooming a resident during an elevator project.

"Insurance is not a service contract," he notes. "Something has to happen first. If the elevator were damaged in a fire or something and there was a claim, then it is conceivable that insurance would cover it as an 'extra expense.' It may fall into that. Otherwise, this is just an expense you have to bear."

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