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Damien Bosco
Damien Bosco, Attorney
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In New York State: My condo bylaws state that the members of

Customer Question

In New York State:
My condo bylaws state that the members of the Board of Managers must be units owners which is defined in the State Condominium act as those owning the unit in "fee simple absolute".
I am the grantor of an irrevocable income only trust. My children are the trustees. The trust form makes no mention of a life estate. I occupy the unit.
1. Can I legally and properly serve as a member of the Board of Managers of the Condominium and vote on issues before the members of the Board or the Condominium?
2. Can the bylaws of the condo be amended to include trust grantors and life estate holders?
Thank you.
Arthur Saltzman
Submitted: 2 months ago.
Category: Real Estate Law
Expert:  Damien Bosco replied 2 months ago.

Hello. Generally, either you or the trustee own the condominium unit, not both. So, technically, if you own it, then you would be the owner of the unit. if the trustees own it, they would be the owner of the unit. In the irrevocable income only trust, the purpose is to take the assets out of the name of the grantor so creditors, like Medicaid, cannot claim the assets as your own, yet allow some control but not enough control to make the assets as part of your estate. The trust owns the assets, therefore, they are not to be counted as assets of you. Consequently, to argue that you can be a Board Member because you own the real estate in fee simple absolute can come back to haunt you if a creditor makes a claim against you attempting to attach the reals estate. They bylaws could be amended to include trust grantor and life estate holders. If so, it would behoove you to make sure there is no grey area that you are the owner of the unit.

Customer: replied 2 months ago.
I am very confused by your answer. What is the "grey area". The trustees own the unit not me!. How can the bylaws be changed as the condominium act (the law) is specific in the definition of a unit owner? What control over the assets of the trust does the grantor have?
Expert:  Damien Bosco replied 2 months ago.
What I mean by grey area is your attempt to be on the board when the trustees own the unit. If you get on the board, a creditor could argue that the assets should be considered in your estate arguing you cannot have it both ways: saying you are not the owner yet being on the board when on owners can be on the board. Also the grey area would be if the board changes the bylaws and you attempt to be on the board.

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