GUEST VIEWPOINT: What You Need to Know About Westchester’s Cooperative Disclosure Law
Joshua Levin | September 2019
After a public hearing and discussion, on Dec. 14, 2018, Westchester County enacted the Cooperative Housing Corporation Disclosure Law. The provisions of the Disclosure Law went into effect on Dec. 14, 2018. The Disclosure Law can be found in Section 700.21-a of the Westchester County Fair Housing Law. Westchester County joins the following municipalities and villages in enacting cooperative transparency- related legislation: Rockland County, Suffolk County, and the Village of Hempstead.
What the Cooperative Disclosure Law Requires
While the Disclosure Law does not require a cooperative board to provide a reason why it rejected a prospective purchaser’s application, it does require, among other things, cooperative boards in Westchester County to send a copy of all rejection letters to the Westchester County Human Rights Commission within 15 days of the notice to the applicant. Failure to do so could lead to the initiation of a complaint under the Westchester County Fair Housing Law. Furthermore, if a cooperative board fails to timely provide the HRC with a copy of any rejection letter, it will be subject to a fine of $1,000 for its first offense, $1,500 for its second offense, and $2,000 for every offense thereafter.
In addition, cooperative boards in Westchester County must do the following: within 15 days of the receipt of an application to purchase shares, cooperative boards must either acknowledge receipt of a completed application, or provide a potential purchaser with notice of any defects and, once the application has been resubmitted, the board has another 15 days to acknowledge receipt of the completed application or, again, advise the applicant of any further defects. Once an application has been completed, a cooperative board must either accept or reject an application within 60 days in writing.
What Can Brokers Do if an Application is Rejected
It is important that the HRC be aware of any rejected applications. With regard to cooperative units, the HRC receives and investigates complaints of housing discrimination in the following protected categories (actual and perceived): race, color, religion, creed, age, ethnicity, national origin, alienage or citizenship status, gender (including gender identity or expression and the status of being transgender), disability, familial status, marital status, sexual orientation, and status as a victim of domestic violence, sexual abuse or stalking.
If a broker believes that a prospective purchaser’s application was denied for discriminatory reasons, or a stated reason for rejection could be a pretext for discrimination or seems unusual (i.e., a buyer is told his or her finances were an issue but the buyer met all the financial criteria set forth by the Board), the broker should speak with his or her client and speak with the HRC. In addition to providing details of the attempted purchase process, the broker or broker’s client should provide the HRC with the deal/term sheet so that the HRC has the contact information for the relevant parties. The broker and the applicant should keep all of their notes regarding discussions with the cooperative board, including notes of the board interview. It may be helpful to keep a record of all questions that the cooperative board asked during the interview process. The HRC can provide you with a copy of a blank complaint form.
Upon receipt of a completed complaint form, the HRC will open an investigation and it can seek records and information from the cooperative board regarding the decision-making process. The HRC can conduct interviews of the relevant parties including board members and decision-makers. If the HRC determines there is “Probable Cause” to believe that discrimination occurred, the matter will be referred to an administrative law judge for a public hearing and the complainant can seek damages.
Brokers who represent a seller in a rejected sale should also contact the HRC. A seller has standing to file a complaint because, if discrimination did occur, the seller has been harmed by the denial. In some instances, sellers have had multiple buyers denied by a cooperative board and a pattern of discrimination may exist.
Examples of Potential Housing Discrimination Claims in the Prospective Purchase Process
• A prospective purchaser is asked about his or her national origin (e.g., where were you born?) or familial status (e.g., are you planning on having any more children?) during the interview or application process and that information is used as the basis to deny the application.
• A prospective purchaser has the required financials but is told he or she does not meet some additional requirements that are not sought for other similarly-situated applicants outside of the applicant’s protected category. For example, an applicant is told that he or she must have three years of maintenance payments in the bank whereas other similarly situated applicants of a different protected category are not required to meet this burden.
If you have any questions about the Disclosure Law or any fair housing issues, please contact the HRC at (914) 995-7710 or by e-mail at firstname.lastname@example.org. You can also come to the office in person (an appointment is recommended) at 112 East Post Road, 3rd Floor, White Plains, NY 10601.