First published: Jun 2025
Bin Battle at 521 Park Avenue
TAKEAWAY A storage bin (unless included in the definition of the unit) in a condominium is typically a common element. As such the unit owner using it has no proprietary right to it, and is granted the use of it only until the board takes it back. Rather than take a chance as to what a court might do, it is wise for any condominium board that allows a unit owner to use any common element to demand that a license agreement be signed by the unit owner. That document would set forth the rights and obligations of both parties. By doing so, the condominium can make it clear that it would have the right to terminate the use of the common element at any time. It should be noted that if a bin (or other property outside of the unit) is designated as a limited common element, the declaration and bylaws should be carefully reviewed as to the rights of the unit owner to use the property.
SIMON BARKAGAN v. THE BOARD OF MANAGERS OF 521 PARK AVENUE CONDOMINIUM
WHAT HAPPENED Barkagan purchased a residential condo unit at 521 Park Avenue in 1991. One of the amenities available to owners was the ability to lease basement storage bins, and in 1992 Barkagan leased two bins from the condo, with only an oral agreement. At that time the condo did not charge a fee for the bins, but in the late 1990s it began doing so, and Barkagan paid $100 per month per bin for this storage privilege.
Around 2015 the condo board wanted to build a basement gym, and the board took back one of the bins to do so. Nearly a decade later Barkagan encountered financial difficulties and fell behind in payment of common charges and rental fees for the bin. In July 2024, the board emailed Barkagan demanding removal of his belongings by month's end.
Even though some payments were made, the board sent another notice in April 2025 stating they would reclaim the space to expand the gym, and gave him until May 18, 2025, to remove his property. The board offered to help move the personal belongings, but Barkagan refused, and sued.
IN COURT Barkagan brought a proceeding seeking declarative and injunctive relief (in order to prevent the condominium from using “self-help”), but the court denied all relief sought by him.
Barkagan first argued that the condominium did not serve a warrant of eviction in compliance with RPAPL Sec. 711, but the court held that this would apply only to residences, which a storage bin clearly is not. The court also held that since the bins were not his property under a deed or any agreement, he had no right to exclusive possession. Therefore, he has not established a likelihood of success (required of any preliminary injunction).
The court also held that there would be no irreparable harm, since Barkagan could always store his personal property in his condominium unit (or find another place to store it). Further, the court held that the condominium’s decision to terminate Barkagan’s use of a common element was protected (and permitted) under the business judgment rule.
COUNSEL for the board and condominium MELISSA EPHRON-MANDEL Ephron-Mandel & Howard; for Simon Barkagan SAMANTHA LESSER Becker & Poliakoff; Justice Lyle E. Frank