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A07272 Summary:

BILL NOA07272
 
SAME ASSAME AS S06412
 
SPONSORRosenthal L
 
COSPNSRPheffer Amato, Richardson, De La Rosa, Davila, Cymbrowitz, Seawright, Barnwell, Epstein, Burdick, Cook, Reyes, Barron, Jackson, Forrest, Zinerman, Simon
 
MLTSPNSR
 
Add §§13-c & 35-a, amd §17, Priv Hous Fin L
 
Relates to voting, election and referendum procedures; requirements regarding mutual housing companies considering dissolution and/or reconstitution; duties of a board of directors of a limited-profit housing company; prohibits certain limited-profit housing companies from voluntarily dissolving during the state disaster emergency declared in response to the outbreak of COVID-19.
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A07272 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7272              Revised 5/26/2021
 
SPONSOR: Rosenthal L
  TITLE OF BILL: An act to amend the private housing finance law, in relation to voting, election and referendum procedures; to requirements regarding mutual housing companies considering dissolution and/or reconstitution; to certain duties of a board of directors of a limited-profit housing company; and to prohibiting certain limited-profit housing companies from voluntarily dissolving during the state disaster emergency declared in response to the outbreak of COVID-19   PURPOSE: This bill is intended to ensure open, transparent, and democratic gover- nance of "Mitchell-Lama" cooperatives, which are organized as limited- profit housing companies, and to protect the interests of shareholders and the public interest in preserving affordable housing. It would accomplish this by establishing certain voting and election procedures, duties of boards of directors, and high thresholds for votes to approve dissolution or steps related to dissolution. The bill also seeks to protect the public health and the interests of shareholders by prohibit- ing dissolution or semi privatization, or related actions or proceedings, during the COVID-19 state disaster emergency period.   SUMMARY OF PROVISIONS: Section one of the bill amends the private housing finance law by adding a new section 13-c outlining voting, election and referendum procedures. Section two of the bill amends the private housing finance law by adding a new section 35-a setting requirements regarding dissolution or recon- stitution of mutual housing companies. Subdivisions 1 through 4 of the new section 35-a provide that: any vote for dissolution of the company shall require the approval of 8096 of all dwelling units owned by the mutual housing company; * any vote to authorize a feasibility study, preliminary offering plan, final offering plan, proxy statement, or notice of intent to dissolve shall require approval of 80'-'6 of all dwelling units; * no funds from the operating budget may be used for the preparation or distribution of any plans or studies or for services related to dissolution and/or reconstitution of the mutual housing company; and *no vote regarding disillusion may occur within five years following a failed vote. Section three of the bill amends section 17 of the private housing finance law by adding two new subdivisions 4 and 5. Paragraphs a-d of the new subdivision 4 require each board of directors to: * hold six meetings annually, with meetings open to shareholders and residents, except in limited circumstances when executive sessions open only to directors are permitted; * file with the commissioner or the supervising agency any votes of the board, indicating how each director voted, which will be a matter of public information; * distribute to all shareholders any communication to the board from oversight agencies and, in the event of a proposed dissolution, the review of any version of an offering plan; and * investigate any substantive allegation that a tenant is not occupying his or her dwelling unit as a primary residence. Paragraphs a-c of the new subdivision 5 require that: * no board may interfere with the right of a shareholder or tenant to participate in the lawful activities of any group formed to protect the rights of shareholders and tenants, or penalize shareholders or tenants for exercising such right; * shareholder and tenant groups may meet without being required to pay a fee in any location on the premises that are devoted to the common use of all shareholders or tenants; * boards will take all necessary and appropriate actions to ensure that a manager or agent of the housing company complies with these require- ments. Section four of the bill requires that, notwithstanding any provision of law to the contrary, no company or urban rental company, as defined by section 12 of the private housing finance law, shall be dissolved, undergo semi-privatization, or initiate related actions or proceeding during the COVID-19 state disaster emergency period. Section five of the bill sets forth the effective date.   JUSTIFICATION: Nearly 65 years ago, State Senator MacNeil Mitchell and Assemblymember Alfred Lama passed landmark legislation to provide incentives for investment in affordable housing. "Mitchell-Lama" cooperatives are governed by their respective boards of directors, composed of elected volunteer shareholders who work to preserve and manage this vital affordable housing on behalf of themselves and their neighbors. The New York City Department of Housing Preservation and Development or New York State Homes and Community Renewal provide oversight of these important sources of affordable housing. This legislation seeks to ensure open, transparent, and democratic governance of Mitchell-Lama coops and to protect the interests of share- holders and the public interest in preserving affordable housing. It would accomplish this by establishing certain voting and election proce- dures, duties of boards of directors, and high thresholds for votes to approve dissolution or steps related to dissolution. Such supermajority voting thresholds are intended to ensure that changes to the basic ownership structure and long-term affordability of the coops are only undertaken when there is a broad consensus among shareholders that the changes are in their best interest. The bill also seeks to protect the public health and the interests of shareholders by prohibiting dissol- ution or semi-privatization, or related actions or proceedings, during the COVID-19 state disaster emergency -- a period when the pandemic imposes significant barriers to effective and transparent resident and shareholder engagement and decision making.   LEGISLATIVE HISTORY: New bill. Provisions of this bill are similar to those of the following bills: A9719A of 2020 (Rosenthal L) A9720A of 2020 (Rosenthal L) A9721A of 2020 (Rosenthal L) A5420A of 2021 (Rosenthal L)   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Minimal.   EFFECTIVE DATE: This act shall take effect immediately; provided, however, sections one, two and three of this act shall take effect on the ninetieth day after it shall have become a law.
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A07272 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7272
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 29, 2021
                                       ___________
 
        Introduced  by  M.  of  A. L. ROSENTHAL -- read once and referred to the
          Committee on Housing
 
        AN ACT to amend the private housing finance law, in relation to  voting,
          election  and  referendum procedures; to requirements regarding mutual
          housing companies considering dissolution  and/or  reconstitution;  to
          certain  duties  of  a  board of directors of a limited-profit housing
          company; and to prohibiting certain limited-profit  housing  companies
          from  voluntarily  dissolving  during  the  state  disaster  emergency
          declared in response to the outbreak of COVID-19
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. The private housing finance law is amended by adding a new
     2  section 13-c to read as follows:
     3    § 13-c. Voting, election and referendum procedures. 1. Any shareholder
     4  vote shall be conducted using secret ballots.   Such  ballots  shall  be
     5  cast  in-person  by tenants entitled to occupancy in the project; unless
     6  such tenant casts such ballot using an absentee ballot  issued  pursuant
     7  to subdivision two of this section.
     8    2.  A  shareholder entitled to occupancy in the project shall be enti-
     9  tled to request an absentee ballot to cast a ballot in  any  shareholder
    10  vote.  Such  absentee  ballot  shall  be delivered or mailed only to the
    11  primary residence address of a shareholder entitled to occupancy in  the
    12  project.  An  absentee ballot cast pursuant to this subdivision shall be
    13  sealed within two envelopes, shall contain the signature of  the  share-
    14  holder  casting  the  vote, and shall be mailed to a neutral third party
    15  not running for a position on the board of directors.
    16    3. Proxy voting shall not be permitted in an election for  a  position
    17  on a board of directors, for dissolution of the company, for the author-
    18  ization  of  a  feasibility  study, for an offering plan including a red
    19  herring or black book, or any document offered in place of  an  offering
    20  plan as permitted by the attorney general.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10975-02-1

        A. 7272                             2
 
     1    4. In-person ballots shall produce a paper record which may be audited
     2  in the case of a contested election result.
     3    5. No otherwise-eligible person shall be prevented from being a candi-
     4  date  for,  being  elected  to, or serving on a board of directors based
     5  solely on that person owing or having owed any amount  of  any  form  of
     6  arrears  to the housing company, unless, at the time of nomination, that
     7  person currently owes an amount of bona fide arrears  greater  than  the
     8  equivalent  of two months of that person's monthly maintenance.  Nothing
     9  in this subdivision shall be construed to require or mandate any housing
    10  company to adopt bylaws, rules, policies, or procedures restricting  any
    11  person's  eligibility  to  be nominated, elected, or serve on a board of
    12  directors.  Nothing contained in this subdivision shall be  a  basis  in
    13  itself to deny such eligibility to any person.
    14    6.  For any shareholder vote requiring a specific percentage of dwell-
    15  ing units, the term "dwelling units" shall mean all dwelling  units  for
    16  which shares have been issued, regardless of whether such dwelling units
    17  are occupied or vacant.
    18    §  2.  The  private  housing  finance  law  is amended by adding a new
    19  section 35-a to read as follows:
    20    § 35-a. Requirements regarding dissolution. Mutual  housing  companies
    21  considering  dissolution and/or reconstitution pursuant to section thir-
    22  ty-five of this article shall be subject to the following requirements:
    23    1. Any vote for dissolution of the company, or to authorize  a  feasi-
    24  bility  study, a preliminary offering plan which may be referred to as a
    25  red herring, a final offering plan which may be referred to as  a  black
    26  book, or a proxy statement, or to send a notice of intent to dissolve to
    27  the  commissioner  or  supervising  agency shall require the approval of
    28  eighty percent of all dwelling units owned by the mutual housing  compa-
    29  ny.
    30    2.  No  funds  from the operating budget of the mutual housing company
    31  shall be used for the  preparation  or  distribution  of  a  feasibility
    32  study, a preliminary offering plan or red herring, a final offering plan
    33  or  black book, a proxy statement, or a notice of intent to dissolve, or
    34  to pay for any services related to evaluation of,  preparation  for,  or
    35  execution of dissolution and/or reconstitution pursuant to section thir-
    36  ty-five of this article, including but not limited to legal services.
    37    3.  No  vote under subdivision one of this section, shall occur within
    38  five years following a vote under subdivision one of this  section  that
    39  failed.
    40    §  3.  Section  17  of  the  private housing finance law is amended by
    41  adding two new subdivisions 4 and 5 to read as follows:
    42    4. Notwithstanding the provisions of any law, general  or  special,  a
    43  board  of  directors  of a company created pursuant to the provisions of
    44  this article shall:
    45    (a) Hold at least six meetings of its members annually. Such  meetings
    46  shall  be  open  to the shareholders and residents, except that they may
    47  include executive sessions open only to directors for the  sole  purpose
    48  of  discussing  confidential  personnel issues, legal advice and counsel
    49  from an attorney to whom the housing company is a client,  or  confiden-
    50  tial  issues affecting individual shareholders or residents, or contract
    51  negotiation.
    52    (b) File with the commissioner or the supervising agency, as the  case
    53  may  be,  a  record of any vote on a resolution of such board, including
    54  specification of how each director voted. Such record shall be a  matter
    55  of public record.

        A. 7272                             3
 
     1    (c) Promptly give notice of and make available to all shareholders any
     2  communication to the housing company from the commissioner or the super-
     3  vising  agency, as the case may be, or the office of the attorney gener-
     4  al, regarding regulations, changes in regulations,  taxation,  finances,
     5  refinancing, or, in the event of a proposed dissolution and reincorpora-
     6  tion, the review of any version of an offering plan.
     7    (d)  Investigate any substantive allegation that a tenant is not occu-
     8  pying his or her dwelling unit as his or her primary residence.
     9    5. (a) No housing company shall interfere with the right of  a  share-
    10  holder  or  tenant to form, join or participate in the lawful activities
    11  of any group, committee or other  organization  formed  to  protect  the
    12  rights  of  shareholders  and  tenants;  nor  shall  any housing company
    13  harass, punish, penalize, diminish, or withhold any  right,  benefit  or
    14  privilege  of  a  shareholder or tenant under their proprietary lease or
    15  tenancy for exercising such right.
    16    (b) Shareholder and/or tenants' groups, committees or other sharehold-
    17  er and/or tenants' organizations shall have the right  to  meet  without
    18  being  required to pay a fee in any location on the premises including a
    19  community or social room where use is normally subject to a fee which is
    20  devoted to the common use of all shareholders and/or tenants in a peace-
    21  ful manner, at reasonable hours and without obstructing  access  to  the
    22  premises or facilities. No housing company shall deny such right.
    23    (c)  The  board  of directors shall take all necessary and appropriate
    24  actions to ensure that  a  manager  or  agent  of  the  housing  company
    25  complies with the requirements in this subdivision.
    26    §  4.  1.  Notwithstanding  any  provision  of law to the contrary, no
    27  company or urban rental company, as such terms are defined in section 12
    28  of the private housing finance law, shall be dissolved pursuant  to  the
    29  provisions of section 35 of such law or shall undergo semi-privatization
    30  pursuant  to  28  RCNY  3-14(i)(15),  or  shall  initiate any actions or
    31  proceedings related to dissolution or semi-privatization, including  but
    32  not  limited  to,  conducting  a  vote to authorize a feasibility study;
    33  submitting a preliminary offering  plan  to  the  attorney  general  for
    34  approval;  distributing  a  preliminary  offering  plan to shareholders;
    35  distributing a final offering plan or proxy statement  to  shareholders;
    36  submitting a notice of intent to dissolve to the commissioner of housing
    37  or  supervising agency; committing, promising, or expending funds in any
    38  way for the purposes of dissolution or  semi-privatization;  or  holding
    39  any  of the required notice meetings during the state disaster emergency
    40  declared pursuant to executive order 202 of 2020 in response   to    the
    41  outbreak of novel coronavirus, COVID-19.
    42    2. As used in this act, the term "semi-privatization" means dissolving
    43  as  a  mutual housing company and transferring the property to a housing
    44  development fund company organized pursuant to article XI of the private
    45  housing finance law.
    46    § 5. This  act  shall  take  effect  immediately;  provided,  however,
    47  sections one, two and three of this act shall take effect on the nineti-
    48  eth day after it shall have become a law.
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