New York co-op boards are notorious for scrutinizing prospective buyers with the intensity of federal investigators. The application and interview process can be lengthy and exhausting for someone looking to move into a cooperative. As such, many buyers look to condos as a way to avoid the whole daunting process. However, condos in New York City have their own way to screen buyers: the nearly universal—though rarely invoked—right of first refusal (ROFR), which is written into the bylaws of most New York condominiums.
ROFR in New York
“It is very rare that the right of first refusal is exercised,” says Alfred M. Taffae, Esq., with Racht & Taffae, LLP in Manhattan. “I cannot personally recall a single instance where a condominium I have represented has even considered exercising their right of first refusal. As a practical matter, it is difficult to do procedurally. It requires majorities of the board of managers and usually of the unit owners as well. And even more fundamentally, it requires the condominium to commit to making a large expenditure without having the funds at hand.”
Because condos are real property—as opposed to co-ops, in which units are shares—sales in condos are not subject to board approval.
“When you own a condominium unit you own real property,” explains Taffae, “whereas in a co-op, you own shares in the cooperative corporation, and the ownership of those shares entitle you to a [proprietary lease] for your apartment. One of the foundations underlying the common law governing real property is that it is in the interests of society as a whole that it be freely assignable, that there should not be restraints on alienation. Any restrictions on sales are viewed unfavorably and must not unreasonably restrict the ability to freely sell real property. That is why the sale of a condominium unit is not subject to the consent of the board of directors as it is in the case of a co-op.”
In New York, however, most condos have the right of first refusal included in their bylaws. This gives the board at least some say in who moves into the building—and who doesn’t.