How do you get things done when people don’t bother to vote?

Condominiums grapple with this question far too commonly. As if the demands of serving as an unpaid, overworked board member were not intense enough, condominium boards typically contend with daunting supermajority voting requirements to move changes forward, not to mention the even more basic problem of persuading owners to participate in the first place. When inaction effectively counts as a vote against a proposal, widespread disengagement can be, in simplest terms, frustrating.

But frustration has been known to drive innovation. In recent years, a small but growing trend has budded among some condominiums, particularly new developments and buildings with younger ownership demographics: the adoption of “deemed consent” provisions. Sometimes also called “negative consent,” these clauses treat the absence of a response as an affirmative vote in favor of a proposal, typically when the vote concerns amendments to a condominium's governing documents.

The concept marks a significant departure from traditional corporate and real property practice. And for condominiums struggling with chronically low owner engagement, its practical impact can be substantial.

This article examines the enforceability of “deemed consent” provisions and considers broader legal and policy frameworks.

The Rise of “Deemed Consent”

Article 9-B of the New York Real Property Law—commonly known as the “Condominium Act”—governs the creation and operation of condominiums in New York. Among its requirements, the Condominium Act mandates that amendments to condominium by-laws be approved by at least “sixty-six and two-thirds per cent in number and common interest” of unit owners (see New York Real Property Law § 339-v(j)). While the Condominium Act is silent on the threshold for amending declarations, declarations are commonly drafted to mirror the by-laws amendment requirements.

These supermajority thresholds are grounded in sound policy. Unit owners acquire fee interests in reliance on the governing documents as restrictive covenants encumbering their property, and it stands to reason that meaningful changes should require the approval of a substantial representation of those owners.

But good policy and practical reality do not always row in unison. For many condominiums—especially those with high numbers of investor-owners—reaching a supermajority through affirmative voting can be difficult, if not near impossible. The logistical reality is that boards often pour significant time, energy, and money into proxy solicitations just to approach these thresholds.

Even then, unengaged owners can effectively block amendments that would enhance quality of life and increase property values for the entire building—not through opposition, but through obliviousness or sheer indifference.

“Deemed consent” tackles this problem by shifting the burden. These provisions typically allow the board to include, in the same notice containing the proposed amendment, a deadline by which unit owners must submit any objections—failing which, silence is counted as an affirmative vote in favor.

While this may seem a tidy solution to the problem of owner apathy, the central question remains: is this framework actually enforceable?

Legal Enforceability

The mere fact that “deemed consent” provisions impose restrictions on owners is not by itself sufficient to invalidate them. Courts routinely enforce provisions in condominium governing documents that restrict owner rights, provided such provisions are not contrary to law or public policy (see e.g. Demchick v. 90 E. End Ave. Condominium, 18 AD3d 383 (1st Dept 2005)).

New York's Condominium Act stands as the principal statutory authority governing condominiums in the state. As discussed above, RPL §339-v(1)(j) requires that a condominium's by-laws provide for “the percentage of the unit owners, but not less than sixty-six and two-thirds per cent in number and common interest... which may at any time modify or amend the by-laws.” The question is whether “deeming” a vote satisfies the statutory requirement for a “percentage of unit owners” to “modify or amend.”

It may be argued that a “plain reading” of the statute suggests affirmative assent. Where the number of signed consents received falls short of the statutory minimum, can one reasonably claim statutory compliance? One might point to ordinary usage of the term “approve” to imply that this involves active, not passive, actions. Traditional voting norms, including those under corporate standards, typically only count votes affirmatively cast; against this backdrop, any ambiguity could be construed in favor of established practice.

But at the same time, technicalities matter—often in the world of law more than most. The statute’s operative requirement is quantitative: it prescribes a minimum percentage threshold, but does not impose conditions inconsistent with “deemed consent” policies.

Properly drafted “deemed consent” provisions do not purport to reduce or exempt themselves from the statutory percentages; they seek to legally satisfy these percentages by defining what counts as approval. Indeed, proponents of a “plain reading” may arguably be precisely the audience most likely to be persuaded by this level of technicality in favor of “deemed consent” enforceability.

In contrast, New York Business Corporation Law (known as the BCL) draws a clearer line. The BCL forecloses the possibility of deemed consent by requiring that corporate action taken at a meeting be authorized by votes “cast in favor of or against such action,” thereby demanding more affirmative action than “deemed consent” allows (BCL §614). The BCL goes on to provide that actions taken outside of a meeting must be by “written consents” that are “signed” (BCL §615). However, these BCL provisions are not dispositive in a condominium context.

While New York courts sometimes overlap standards between condominiums and co-ops—such as the “Business Judgment Rule” recognized in Matter of Levandusky v, One Fifth Ave. Apt. Corp., 75 NY2d 530 (1990)—they also recognize that condominiums are legally and structurally distinct from cooperatives and fall outside the reach of the BCL (see Pomerance v. McGrath, 143 AD3d 443 (1st Dept 2016)). Indeed, the BCL's express prohibition arguably supports the permissibility of deemed consent in condominium contexts: it demonstrates that the legislature knows how to block such mechanisms when it intends to, and meaningfully chose not to do so in the Condominium Act.

It is interesting that, in the world of contract law, New York courts have recognized certain circumstances where silence may constitute contractual acceptance, including where a party is “under a duty to speak” (Russell v. Raynes Associates Ltd. Partnership, 166 AD2d 6 (1991)). At first glance, contract law may seem remote from the condominium context, where governance rights and obligations arise from restrictive covenants.

However, in Pomerance v McGrath, 124 AD3d 481 (1st Dept 2015), the First Department characterized “a violation of by-laws” as “akin to a breach of contract,” suggesting a contractual relationship arising from these restrictive covenants. Indeed, unpaid common charge claims are often pleaded as breach of contract, further supporting a contractual relationship.

As a Matter of Policy

Beyond the statutory and doctrinal landscape, “deemed consent” raises policy considerations rooted in democratic participation and fairness that are worth discussing. One concern is that supermajority requirements exist precisely to ensure broad consensus before fundamental rules are changed. Treating non-votes as affirmative votes could conceivably invert that purpose and allow an active faction to impose changes without proving an appropriate level of support. Under this view, counting silence as a “yes” arguably adopts a lower standard of democracy.

Notice failures present a related concern. Because “deemed consent” hinges on an owner's opportunity to object within a limited window, owners who do not receive or read the notice—whether due to misplaced mail, language barriers, or other commonplace occurrences—could find themselves bound by amendments they never had a meaningful chance to oppose. Critics might further contend that this burden falls disproportionately on vulnerable populations, such as elderly owners, non-English speakers, and those less familiar with legal processes.

There might also be a potential “slippery slope” to consider. For example, RPL §339-i specifies that common interest has a “permanent character” that cannot be altered without the consent of all affected unit owners. While “deemed consent” provisions are typically applied to by-laws amendments, an extension of the same logic could suggest that even changes to percentages of ownership interest might be effectuated through deemed consent – a result that intuitively feels more difficult to accept.

These concerns, however, must be weighed against policies relating to practical realities. The ability to adapt rules to changing circumstances is essential to the functioning of any condominium community. When a small minority of non-participating owners can block amendments simply by ignoring ballots, buildings may be unable to address maintenance issues, update outdated rules, respond to legal developments, or otherwise improve the overall living experience for the building.

“Deemed consent” is best understood as a reasonable response to the collective action problem inherent in large, multi-owner buildings. An owner who is genuinely invested in the affairs of the condominium bears only the minimal burden of submitting a vote to express an objection. Silence, in this context, may reasonably signal acquiescence.

Strengthening the Enforceability of Deemed Consent Provisions

While the legal landscape surrounding “deemed consent” remains largely untested by New York courts, practitioners drafting these provisions would be well advised to take steps that position them more favorably in the event of a challenge.

For example, the window for objections should be reasonable. Shorter periods—such as seven days following notice—risk judicial invalidation, possibly on the grounds that they constitute unreasonable restraints on alienation or offend public policy. Many declarations and by-laws default to a thirty-day notice period for routine communications, and adopting that same period for “deemed consent” could lend meaningful support to the timeframe’s reasonableness.

For the more conservatively minded, there is a useful legislative benchmark: recent amendments to RPL §339-aa impose a 90-day notice requirement on boards before commencing a lien foreclosure action, reflecting what the legislature has ostensibly recognized as a reasonable period for a unit owner to act before an event affecting their fee interest.

Additionally, the format and content of the notice itself should be carefully constructed. Drawing from commercial leasing precedent, it is advisable for the notice of amendment to contain clear, bold, and capitalized language informing the recipient of the consequences of inaction.

Practitioners might also consider mirroring the formatting requirements of the recently updated RPL §339-aa by setting the notice text in at least 14-point type. Above all, the substance of the proposed amendments should be presented in terms that are clear and unambiguous, leaving no room for a claim that the owner did not understand what was being proposed.

Another drafting safeguard would be to require a board-level supermajority as a precondition to relying on "deemed consent." Because the board is elected to represent unit owners, this extra approval step may help prevent a small group of owners from taking advantage of low participation to push through amendments. The approach also mirrors certain corporate governance norms, where major actions (amending the certificate of incorporation, mergers, etc.) typically require meaningful board approval before being presented for owner action.

Conclusion

“Deemed consent” provisions may present a creative and pragmatic response to the persistent challenge of owner disengagement in condominium governance. While New York courts have yet to comment on this concept, there seems a reasonable basis to conclude that these provisions are enforceable—particularly given that the Condominium Act does not expressly prohibit them and the legislature has demonstrated, through the BCL, its capacity to restrict such mechanisms when it chooses to.

That said, thoughtful drafting remains essential to positioning these provisions favorably—including providing reasonable objection periods, delivering clear notices, and mandating prior board approvals as safeguards. Practitioners and boards should also remain attentive to policy concerns, including democratic participation and the protection of vulnerable owners, as these factors may inform how a court ultimately weighs enforceability.

As condominium communities continue to grapple with the realities of owner apathy, “deemed consent” provisions may offer a practical and legally supportable framework for effective governance—one that, when properly implemented, could potentially respect both statutory requirements and the collective interests of unit owners.

Reprinted with permission from April 10, 2026 issue of the New York Law Journal© 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.