The category-level rule

A supermajority vote to adopt a new lease form does not, by itself, extinguish a right that the existing lease made individually consent-protected. Where a lease clause conditions a change on a particular lessee's consent, a board-drafted replacement lease approved by other shareholders is, at the pleading stage, a breach of the old one.

That is not a rule against amending a proprietary lease. New York co-ops amend leases, and the threshold in the documents governs. It is a rule about the difference between a collective right, which a supermajority can change, and an individually held right, which it cannot — and about the fact that a right tied to a shareholder's share allocation and maintenance obligation over four decades looks very much like the second kind.

Note also that the shareholder's attorney-fee claim rode along, under the reciprocity Real Property Law § 234 supplies. Our New York governing statute page covers how the certificate of incorporation, bylaws and proprietary lease are read together, and our board elections page covers the amendment mechanics.

Read it against the decision that went the other way

The same year produced a First Department decision that is genuinely alarming for a New York co-op board, because it holds that a cooperative can waive its own no-waiver clause by conduct.

The decision, reported at 2025 NY Slip Op 07085, concerned whether an entity qualified as a holder of unsold shares — which carries real money, because a holder of unsold shares is exempt from the flip tax, from sublet approvals and fees, and from renovation approvals.²

The court began where New York law begins: “Whether a party is a holder of unsold shares (HUS) for a cooperative is determined based upon 'the terms of the documents defining their contractual relationship with the cooperative corporation' (Kralik v 239 E. 79th St. Owners Corp., 5 NY3d 54, 57 [2005]). Here, contrary to petitioner's contention, the language of the governing documents does not unambiguously provide that an HUS may transfer unsold shares to another entity such that the other entity may qualify as an HUS.”

So the documents did not permit the transfer. And the petitioner still won:

“However, parties may waive or modify provisions of the governing documents, including any prohibition on the transfer of unsold shares to another entity…, which the parties did here as established by the evidence in the record.”

What the evidence was: “the minutes of the October 2021 annual shareholder meeting and notices to the shareholders, indicate that the Cooperative and petitioner each treated petitioner as a sponsor and thus as an HUS … [and] permitted petitioner to act as an HUS for nearly two years by failing to object to its non-payment of typical shareholder fees or to its renovations and sublets which were conducted without first obtaining board approval.”

And then the sentence that should be pinned to every New York board's wall:

“Although petitioner concedes that the proprietary lease contained a 'no-waiver' provision, the record establishes that the Cooperative waived the no-waiver provision by actively treating petitioner as an HUS for a continuous and extended period…”

Where the line between the two decisions falls

Put Hubshman and the holder-of-unsold-shares decision together and the pattern is coherent, if uncomfortable for boards. What the documents say matters, and what the board has actually done matters at least as much. A board cannot vote away an individual's consent-protected right; and a board can lose a right the documents plainly give it by not exercising it for two years.

But conduct-based waiver is not unlimited, and a third 2025 decision marks the boundary. Where a condominium board sued over unauthorised alterations, the First Department affirmed summary judgment for the board and dismissed waiver and estoppel defences, holding:³

“Both the alteration agreement and the condominium's declaration contain a no-waiver clause, the waiver of which 'will not be lightly presumed'… To the extent defendant's alterations violate statutory law, they are not waivable…”

And on the quality of evidence a waiver defence needs: “These affidavits do not provide any specifics as to the dates or circumstances surrounding these purported inspections, which alterations were inspected, what the inspections entailed, and what, if any, affirmative conduct manifested plaintiff's intentional abandonment of a known right.” And: “[M]ere silence or oversight does not constitute clear manifestation of an intent to relinquish a known right…”

So: statutory violations cannot be waived at all; vague assertions of past inspections are not waiver; and mere silence is not waiver. What was waiver in the holder-of-unsold-shares case was two years of documented, affirmative treatment — minutes, notices to shareholders, accepted non-payment of fees, unapproved sublets and renovations passing without objection.

What this actually means for a New York board

Before amending a proprietary lease or declaration, identify every individually held right in it. Roof and terrace rights, exclusive-use grants, storage allocations, parking assignments, rights tied to a particular unit's share allocation, and any clause conditioning a change on a named party's consent. Those are the provisions a supermajority cannot reach, and they are usually the provisions a modernising board most wants to tidy up.

Enforce consistently, and document when you decide not to. A board that tolerates a practice for two years while its documents forbid it is building the other side's waiver case in its own minutes. If there is a good reason to tolerate something, record the reason and record that the right is not being abandoned.

Do not rely on the no-waiver clause. New York courts will not lightly presume waiver of one — but they will find it on a sufficient record of affirmative conduct. The clause is a thumb on the scale, not an answer.

Our New York records inspection page covers the minutes that become the evidence, our architectural review page covers the alteration-approval process, and our fining authority page covers consistent enforcement.

One note on sourcing: the holder-of-unsold-shares decision is an Official Reports decision of the First Department, but the copy available to us began with counsel, so we do not have its printed case name, decision date or Appellate Division citation — only the slip opinion number, the panel and the lower court. We are reporting the slip opinion number rather than guessing at the rest. None of these decisions predicts how any particular dispute would come out.