Q. “We live in a co-op, and one of our neighbors seems to have a constant flow of different strangers entering and leaving their apartment while they are absent. I cannot imagine that the board knows this is going on, and our house rules don't really cover anything like this. Without language in our governing documents prohibiting unaccompanied guests, how can we regain some control here and keep our building secure?” 

                                    —Monitoring Strangers

A. “Without language in the governing documents, it is very difficult to prohibit or regulate the conduct and activities of members and their guests,” says Attorney Kris Kasten of Chicago-based law firm Bartzen Rosenlund Kasten. “In the context of a residential housing cooperative, the governing documents typically consist of the proprietary lease (or occupancy agreement), bylaws, and house rules (or rules and regulations). For a cooperative that is incorporated as a business or not-for-profit corporation, or other legal entity, the governing documents include the articles of incorporation or other documents creating the entity, which are often filed with a governmental agency. Read together, the governing documents establish the scope of the board’s authority, the rights and obligations of members, and the restrictions and prohibitions related to the use of the property.

“Although the cooperative’s rules may not contain any provisions specifically prohibiting unaccompanied guests from using the apartment when the member is absent, there may still be provisions in the governing documents applicable to the situation,” Kasten continues. “For example, the proprietary lease may contain a provision against activities that are an annoyance to other residents or that create a nuisance. The proprietary lease or rules may contain a provision restricting use of apartments for residential purposes or prohibiting commercial activities.

He adds that “some governing documents prohibit subletting. Therefore, depending on the facts of the situation, the governing documents may contain provisions that can be the basis for enforcement action against the member who allows unaccompanied guests to use their apartment when they are absent.

“If the governing documents do not contain any applicable provisions, then the cooperative must amend those documents to add provisions to regulate or prohibit the problematic conduct or activities. The procedure for making such an amendment will depend on the document being amended. Some documents may be amended by the board alone, and some may require member approval. For example, amending a proprietary lease often requires approval of the association members, or a specific percentage of the members, while house rules can often be adopted and amended by the board alone. That said, rules cannot conflict or be inconsistent with provisions of the proprietary lease. Thus, if the proprietary lease expressly allows or prohibits something, the rules cannot be used to change the proprietary lease without following the process for formally amending it.

 “Finally, the board is vested with the authority to operate and administer the cooperative, including but not limited to taking enforcement action. Therefore, the cooperative should have procedures in place for members to submit complaints and concerns to the board for consideration and action, if appropriate.

“In summary, although there may not be any specific provisions expressly addressing this situation in the governing documents, there may be other more general provisions that may apply. If there are no provisions in the governing documents granting the board authority to regulate, restrict, or prohibit certain uses and activities, then the governing documents need to be amended pursuant to the applicable amendment procedure. The board should be notified of any concerns or complaints from members about activities in the building so that the board can investigate the situation and take appropriate action. If members of the community are concerned about the security of the building, it is important for those concerns to be discussed with the board so that an appropriate solution can be found. Since cooperatives are primarily governed by their governing documents, but also by statute in some jurisdictions, it is important that any board consult with an attorney to fully understand what it can and cannot do in any given situation, including but not limited to when a member allows unaccompanied guests use their apartment, posing a security concern for the building.”