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Co-op Sale Contracts: Allocating the Risk of Potential Co-op Board Interference
When may a coop buyer escape from a sale contract based on erroneous statements made by the coop board that would, if accurate, interfere with the buyer's right to occupy space associated with the coop shares the buyer has contracted to purchase? The First Department recently faced that issue in Pastor v. DeGaetano' 2015 WL 1781530, and held that the seller was not entitled to summary judgment on the buyer's claim for return of his down payment, emphasizing that a coop buyer is entitled to an assurance that the coop corporation would not disturb his exclusive possession if he consummates the sale.
The Facts
In March 2012, the buyer contracted to purchase shares associated with a penthouse apartment. The buyer paid the seller (an estate) a down payment of $2.75 million on a purchase price of $27.5 million. The proprietary lease associated with the shares provided that the owner of the penthouse “shall have and enjoy the exclusive use of the roof appurtenant to such apartment [i.e.' the terrace] as shown on the plan of the penthouse,” subject to the coop's right to access the roof for maintenance. The contract of sale included a rider requiring the seller to deliver to the buyer, “at or prior to Closing the 'plan of the penthouse' ('Plan') referred to in the Proprietary Lease ' from the [Coop] or an agent thereof, ' which Plan shall be substantially similar to that of the floor plan annexed hereto as Exhibit A.”
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