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BLOG / 09.16.21 /Kenneth R. Jacobs

Our Legislature At Work, Legal News & Updates 9.15.2021

The New York State Legislature has considered the pressing problems affecting community associations and in response, has passed at least four new bills affecting condominiums, cooperatives and homeowners associations that are either awaiting the Governor’s signature or have been signed into law.

“PREVAILING WAGE” BILL SIGNED INTO LAW.

Governor Hochul has signed into law the bill conditioning receipt of the NYC co-op/condo tax abatements on payment of “prevailing wages” to employees. Owners in the following categories of cooperatives and condominiums will not receive their customary tax rebates unless their associations pay the “prevailing wage”: (i) buildings with assessed valuations averaging more than $60,000 per unit and having 30 or more apartments, and (ii) all buildings with average assessed valuations exceeding $100,000 per apartment. The “prevailing wage” can be obtained from the New York City Comptroller’s Office. For more details, click HERE to see our Client Alert from July 12, 2019.

HEALTH AND ESSENTIAL RIGHTS ACT (“HERO ACT”) NOW EFFECTIVE.

The New York Health and Essential Rights Act (“HERO Act”) mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. It applies to any person or business entity with at least ten employees.

Section 1 of the Act required the Commissioner of Labor to publish model airborne infectious disease exposure prevention standards and protocols within 30 days, and employers to adopt and implement protocols meeting or exceeding those standards within the next 30 days. Those model plans were published on July 6, 2021 (click HERE). New York employers had until August 5th to adopt them, and until September 7th to post and distribute them to their employees and incorporate them into employee handbooks. Section 1 also prohibits discrimination and retaliation against employees for exercising their rights under the Act or the employer’s plan, reporting violations or exposures, or refusing to work under conditions inconsistent with law or the plan (with certain exceptions).

Section 2 of the Act, effective on November 1, 2021, requires covered employers to permit employees to establish and administer a joint labor-management workplace safety committee to raise health and safety issues, review policies relating to occupational safety and health, with certain meeting and training allowances.

Covered employers who have not done so should adopt an airborne infectious disease exposure prevention plan immediately and disclose the plan to employees. Covered employers should be prepared to set up workplace safety committees starting November 1, 2021.

SOLAR POWER ACT.

The legislature has passed the “Solar Power Act,” which declares that “unreasonable” restrictions imposed by Homeowners Associations on installation of solar systems on owners’ property were “contrary to public policy.” A restriction that “inhibits the solar power system from functioning at its intended maximum efficiency” or increases the system’s installation or maintenance costs by more than 10% of its total installation cost is deemed to be “unreasonable.” Condominiums and cooperatives are excluded from its application as long as the property where the owner wishes to install solar equipment is owned in common with others.

We think the legislation is misguided as written. Most solar power systems are installed on roofs. Although many HOA homeowners may own their roof, usually they are not responsible for repairing or maintaining it. In most HOA’s with attached homes (and even many HOA’s with stand-alone homes) the HOA has to repair and maintain the roof. Installing a solar photovoltaic system on a roof usually voids the roof warranty; it certainly makes repairs and maintenance much more difficult. Associations need to make sure that owners are held responsible for the costs stemming from their installations, without “unreasonably” restricting them.

LEGISLATURE EXTENDS EVICTION MORATORIUM UNTIL JANUARY 15, 2022

By now most readers know that the moratorium on evictions has been extended through January 15, 2022 in order to facilitate distribution of rental aid to lessees suffering financial hardship due to COVID. We hope that NY State substantially improves its distribution system so that low-income shareholders who have defaulted in their maintenance charges due to COVID hardship will be able to obtain needed rental assistance, and their landlords sorely needed funds.

IMPORTANT – CONDO COMMON CHARGES ARE NOT RENT. Many associations believe that they are barred from seeking collection of arrears from unit owners who have defaulted in paying common charges, or from accepting partial payments of common charges from owners in arrears. That is not true. Common charges are not rent. The moratoriums on non-payment actions or evictions during COVID do not apply to actions to collect common charges. (Nor are Condominiums considered “mortgagees” under the various statutes, so they are not barred from foreclosing on their liens for common charges.) Furthermore, unlike acceptance of rent, acceptance of common charges by management does not void an action by a condominium association to collect a money judgment or to foreclose on its lien for common charges.