When a member experiences a fire loss, whether it be a partial or total loss, the member may request that the cooperative grant him/her access to his/her dwelling unit to retrieve personal items, if any personal items can be safely retrieved. The concern here is that as a result of the fire, the unit is uninhabitable and structurally unsound and access should only be granted on a case by case basis. It is vital that in these unfortunate events the safety of the member is protected and the dwelling unit is preserved at all times until the unit can be repaired.
When a member requests access to his/her dwelling unit after a fire, the cooperative must take protectionary measures to ensure not only the safety of such access, but to ensure the safety of the dwelling unit as cooperative property.
When these unfortunate events occur, and once the cooperative ensures the safety of the affected members, secures the unit and contacts the fire department and insurance company, it should contact the cooperative attorney to draft a release and waiver of liability for the member to sign in order for the member to access the dwelling unit. The release and waiver of liability will not only work to protect the cooperative in the event that the member injures him/herself while accessing the unit, but it will also provide for the strict purposes that the member is allowed to access to his/her unit.
A member’s access must be limited to the retrieval of small personal items, such as a wallet, license, social security card or other vital documents. Large personal items such as televisions, furniture, etc., must not be moved. Most importantly, such access must not only be supervised by a representative of the cooperative or management agent and/or a representative of the police and/or fire department, but must only be granted when the dwelling unit has been determined to be accessible by the police and/or fire departments.
The member must understand that there are inherent risks involved in the accessing of his/her dwelling unit due to the structure not being structurally sound because of the fire. Said risks include personal injury or death and/or injury to or loss of property. As a result of such inherent risks, the member must agree to assume all risk and liability associated with his/her access to the dwelling unit for the limited and supervised purpose of retrieving his/her personal belongings.
The cooperative’s permission to grant the member access to the dwelling unit must solely be limited to the agreed upon date to enter the dwelling unit. The member must understand that he/she cannot enter his/her dwelling unit at any other time. Said restriction not only protects the member from injury, but protects the dwelling unit from suffering further loss.
The release and waiver of liability also works as a condition precedent for the member to be able to access his/her dwelling unit for the limited and supervised purpose to retrieve only the member’s requested personal items. The release and waiver of liability must also include protectionary such as the agreement of the member to waive, release and discharge the cooperative for claims arising out of the member’s access to his/her dwelling unit. Another important protectionary provision that must be included is indemnification. The member must agree to indemnify the Cooperative for any injury, damage causes of actions, etc., that may arise from the member’s access to the dwelling unit. The concern here is that there is a potential for personal injury, death, injury to property or the loss of use of the property as a result of the fire in the dwelling unit.
The loss of one’s home whether partial or total and the loss of one’s possessions are beyond devastating. We sincerely hope that no cooperative and its members have to ever endure such loss. In sum, in the event that a member requests access to his/her dwelling unit after a fire loss the member must effectuate a release and waiver of liability prior to accessing his/her dwelling unit in order to protect both the member and the cooperative.
Alyssa Gunsorek is an associate attorney with experience in contract negotiations. She has contributed articles for various publications including the MAHC Messenger, NAHC’s Housing Cooperative Quarterly, and Pentiuk, Couvreur & Kobiljak’s Cooperative Law Journal.
