Who’s Responsible for This?

Shareholder vs. Board Responsibility

By Anthony Stoeckert

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Do you know what your problem is? More importantly, do you know if it’s actually your problem? In the world of condos and co-ops, understanding who is responsible for what in an apartment or in a building’s common areas isn’t always clear to apartment owners or shareholders. During the process of purchasing a condo unit or shares in a co-op, buyers are often so engrossed in the buying process itself that they don’t invest the effort needed to understand the ins- and-outs of ownership. This can lead to confusion, even anger, when the need for repairs starts popping up.

So it’s important for boards and management to help owners understand just what it is they are responsible for in terms of the maintenance and repair to their apartments. And it’s equally important for the board of directors of a co-op or a condo to know exactly what their duties are to shareholders and unit owners.

Who Owns What?

Ultimately, what a unit owner is responsible for and what the building management is responsible for, will be determined by the proprietary lease or governing documents. The usual standard is that the owner owns, and is responsible for repair and maintenance of everything from the walls in.

In general, that means that when it comes to painting, repairing damage to walls, the unit’s plumbing and all appliances, the owner has to foot the bill. There can, of course, be exceptions. According to Marc H. Schneider, an attorney based in Garden City, if there’s a pipe or line in an apartment that services parts of the building aside from the individual unit, the condominium may be responsible for that; if so, the governing documents would point that out.

Other things can vary, depending on the particular condo or co-op community. Schneider points to limited common elements as an example. Limited common elements are common elements, but are used primarily by one shareholder: a deck or terrace, stairs leading to an apartment, and so forth.

 “Many times, the repair and/or replacement responsibility for limited common elements falls on the unit owner,” Schneider says. He referred to a condo development where for years, the building paid for the replacement of decks, but it turned out the governing documents said unit owners were responsible.

Apartment owners and shareholders are also responsible for any action (or lack of action) they take that damages another apartment.

“If the apartment above doesn’t properly caulk their bathtub, and the water leaks to the apartment below,” Schneider says, “that shareholder is responsible for the damage [he or she causes], not the co-op because the co-op didn’t do anything wrong.”

This is covered not by a building’s bylaws, but by standard negligence law. “What is covered in the lease,” Schneider says, “is that the shareholder must properly maintain that tub, so when they don’t, they have essentially breached their lease.”

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Some buildings also require owners to carry certain insurances, an idea that Schneider recommends, “so that if there’s ever a problem where they didn’t make the proper repairs and it causes damage to another unit, there is recourse against the unit owner.”

You Own It, You Fix It

Things can get confusing with these arrangements, but even at its most basic level, people don’t always understand it. Many people think that because they live in a building with a superintendent, that the building should handle any and all repairs.

According to Schneider, it’s common for people who own apartments to mistakenly think that because they live in a building with a super, that all repairs should be taken care of by the building.

“In an apartment-building setting, I think many times people still lose sight of [the fact that] the superintendent is not your landlord and doesn’t have to make repairs to your apartment for things that are your responsibility,” he says. He adds that people who live in townhouse-type developments often have a better understanding of the idea that they own the apartment and are responsible for the maintenance of it.

“I think most people tend to have a renter’s mentality,” says C. Jaye Berger, a Manhattan attorney who specializes in construction-related litigation and issues pertaining to co-ops and condos. “They think, ‘OK, something is wrong, the building should come and fix it, call the super.’ And then they’re shocked and upset to find out it’s their responsibility.”

According to Peter Grech, the president of the New York Superintendents Technical Association (STA), a super’s responsibility can vary from building to building.

“What’s common in most buildings is that the super is responsible for the day-to-day operations of the building, specifically heating, hot water, cleanliness and maintenance and upkeep of the common areas,” Grech says.

But very often, people think the super is there to handle repairs in units as well. Grech says this is because owners think that’s what their maintenance fees are for, when those fees actually go towards keeping the building running and upkeep and repairs to common areas — not “maintenance” on their personal unit.

Some buildings do have arrangements where a super or handyman can be called to apartments for some repairs.

“Sometimes a condo or co-op will have the handyman or super repair a minor repair like a washer or a leak under the sink,” Grech says. “The labor would be free, but the cost of the materials would come from the owner of the apartment.”

Grech says this is a good practice because it makes it easier for owners to get leaks repaired that if unchecked could cause damage to other units. The problem he says, is that this policy isn’t always spelled out clearly.

There are also occasions where a super will make a repair to an apartment that the building isn’t responsible for as a favor to the unit owner.

“A lot of times, I think superintendents actually wind up doing more than what they’re supposed to do, just because they have some sort of relationship with the people in the building, they live in the building, they know the people and they want to help them out,” Schneider says.

According to Grech, while this practice is an understandable act of kindness, it’s ultimately a mistake because apartment owners may start to ask for too many favors, or if the owner isn’t happy with the repair it can cause problems for the super and the building. As a compromise, a building may allow a super or handyman to make repairs to apartments on his own time.

“Sometimes a building will say that it’s fine if you want the super or handyman to paint your apartment, or make your repair, but he has to do it on his day off,” Grech says. “But the building has to make sure he’s doing it on his time and not double-dipping.”

Contractor Issues

If one owner has work done by a hired contractor and the contractor causes damage to a common area or another unit, any necessary repairs should be covered by the contractor’s insurance, so it’s imperative that any contractor hired be properly covered.

“Sometimes, if the contractor causes a small problem, he’ll just agree to fix it himself,” Berger says. “But if something happens of a much bigger nature, that’s what the insurance certificate is for.”

Berger adds that the same responsibility applies to the condo or co-op management if a contractor working on a common area damages an apartment, then the building management is responsible for making sure the contractor is properly insured.

Before an apartment owner or shareholder hires a contractor, he or she has to check their documents. Buildings often have specific insurance requirements for contractors being used within the building. The building’s approval of any work done in an apartment may also be required before bringing in a contractor.

“You can’t just bring in the average Joe who’s not licensed to handle a repair — and you can be in breach of the governing documents if you do so,” Berger says.

Schneider adds that all of this needs to be done before the contractor is hired. If this isn’t done, life could become pretty unpleasant.

“You could be stopped in the middle of the job, which could cause a major disruption in your ability to live in the unit,” Schneider says. “If you’re in the middle of a bathroom project, and you only have one bathroom, and the contractor isn’t licensed and the superintendent hears him banging into the wall, now all of a sudden he’s pulled off the job. Not only do you have the disruption of the work not being completed, but you also have a scenario where you could potentially be held in breach of your proprietary lease and the governing documents and face the implications of that breach.”

Warranty of Habitability

According to Schneider, a warranty of habitability is a relationship between a landlord and tenant that says an apartment has to be habitable. Since in a condominium setting, owners actually own their apartment, there is no warranty of habitability. But in a co-op, there is a responsibility for the building to make required repairs.

“If there’s a water pipe leading to a unit and the co-op is responsible for it and doesn’t make the repair, and I have no water, so I can’t shower, can’t bathe, can’t cook . . . I might have to move out,” Schneider says. “In order to claim a breach of the warranty of habitability you have to essentially be constructively evicted from the unit.”

In warranty of habitability suits, what usually happens is that a shareholder will ask for a repair to be done — and if the repair isn’t made, the shareholder may decide not to pay his or her maintenance fees. The building may then start a summary proceeding to evict the shareholder. The shareholder then may claim that the co-op breached the warranty of habitability, thus justifying withholding the payments.

“It’s not something that’s common because many of the repairs that a co-op may have a responsibility to make probably don’t affect the apartment in that way,” Schneider says. “But there are a few — like water and electricity — that can give rise to a breach of the warranty of habitability.”

It’s All In the Documents

Buying a home is a big decision, and when buying into a co-op or condo, it really is imperative that the buyer review any and all documents.

“The best advice for someone buying into a cooperative or a condominium is to read the governing documents before you purchase so that you understand what you are responsible for,” Schneider says.

But lots of people don’t read those documents, no doubt because buying a home is busy enough and reading legal documents seems like a tiring task. It’s also likely that some people read the documents but don’t understand them; in those instances Berger suggests going over the documents with your lawyer to get a better understanding of your responsibilities toward your apartment. Also, people moving from one condo or co-op to another need to review their new building’s documents as well, since regulations can change from building to building. And after signing off, owners shouldn’t throw away those documents. If something does break and you’re not sure who’s responsible for it, you will have to refer to the documents in order to know what course of action to take.

Condos and co-ops can also take steps to make sure that people buying into their communities have a clear idea of what they need to take care of.

“Some buildings are more together than others,” Berger says. “Some have a written alteration policy, so if you were looking into buying into the building, someone would hand you a copy of the policy that would tell you in quite a bit of detail what you’re responsible for.”

In the end, while there may be differences in what shareholder/owners and the building itself are responsible for, one this is certain: by knowing what part you play in the day-to-day working of your building vis-à-vis your managing agent, shareholders, and board members, the less chance for conflict.

Anthony Stoeckert is a freelance writer and a frequent contributor to The Cooperator.

Comments

loretta Carroll

How can they evict a Coop owner? What happen to the money you paid already if they evict you?

stephen gregory

who is responsible for the exterior walls of the building?I have my own property in a development on three floors and there is a little external damage to the wall??

Irma

If water leak comes from above co-op unit through to bottom unit and owner incurs damages to household items, but later it is determined that it is building's responsibility due to necessary repairs to inside of building's walls or structure, is co-op liable to reimburse bottom unit's owner for damages? who should be sued, if any, building's management ins co and/or above unit's owner?

Dijon

I am buying a condo, the developer wants me to waive the implied warranty of habitability?is this normal?his reason being,they rehabbed the building and didn't build it from scratch?should i be alarmed?

anna

I live in a townhouse. My neighbors wall borders one side of my yard. We have no board or anyone governing our group of 10 townhouses. My neighbor insists that I am responsible for repairing and maintaining his outside wall. I do not understand this b/c it is his loss if the wall falls into disrepair. I live in NM.

Natasha

I have a leak in my kitchen sink. The super told me I need to have it repaired by an outside plumber. I thought the super or handyman did that. My super and handyman really are useless when it comes to fixing and determining what needs to be done.

Jamie

I own an apartment in a co-op building. The elevator broke down last week and a sign has been put up that they are getting estimates to ix it but it will be inoperable "for weeks". I live on the top floor of a 7 story building and am not able to walk the stairs without significant duress. Under the Warranty of Habitability, am I and other shareholders eligible or a maintenance reduction until the elevator is fixed?

Agnes

I own a town home where I am on the inside of a 4 unit place. The "common wall" between my place and his is where I have a question. He has remodeled his unit bathroom to include a garden tub/spa in which he placed his spa plumming in our "common wall" without approval from me or the board of directors. A rat had apparently gotten into the wall and chewed a hole in his tubing which caused a leak in the wall. My question is: 1) Is is allowable under GA building code to put plumbing in a common wall adn #2) Is he responsible for repairing the mold and mildew that this has caused inside that wall?

Rose

I live in a town house in Westchester NY. I been having water problems for over a year. I live at the bottom of a hill. Water runs down the hill and settles in my backyard. Also, in front of me I have another hill that water runs down and settles in my backyard. There are french drains but doesn't work properly. After it rains and my backyard is flooded back basement closet gets water. Mold and mildew is in the closet which I clean and my basement smell stuffy. I asked them what will they do and never get an answer of I get an answer that we don't have money and they are trying their best. What can I do? I am tired of cleaning the mess and my basement smells. We do use the basement. I have a guest room and work out equipment down there.

an unknown user

Our coops were destroyed in hurricane sandy. The propietary lease says all floors, coop doesnt want to replace kitchen and bath floors is that legal?

Bhanudas thorat

Water supply line suppling water to three appartments is leaking between 3rd and 4th floor. this line is consealed and leak is causing water pouring in 3rd floor kitchen. Who should repair water line?

Catherine

who is responsible for upgrading an electrical system fro 30 amps to 60 amps in a co-op?

Brendon

My co-op is in the basement of the building. When it rains, water rises through my toilet and bathtub, and floods the entire apartment. Whos problem is that?

an unknown user

Water supply in kichen to condo unit has a clear soapy like appearance and is nauseating after drinking. Neighbors have no complaints. Engineer denies water issue in my unit but refused to drink it. What can I do?

Diana

What happens when you rent a condo that is owned by someone else, and the HOA decides to make electrical repairs. This means that the entire building has no electricity from 9-5 on two days, with 92 degree heat outside. This makes it uninhabitable? In the evening the first day there is supposed to be a generator. The second day it may be fixed? Is there a rule about compensation? Relocation during that time? Who would be responsible?

Lamarr Long

I'm being charged for adm. code violations which should been removed prior to my becoming a tenant/shareholder now the fees have been charged back to me, for work not completed. which I can't resolve in court. $2775.00

jacqueline

Who is responsible for repairs in an apartment or condo ? Meaning air condition is not working or floor coming up because too much moisture in the unit its to hot and humid

Don Matson

If one's shut off valve below a sink leaks & causes damage to the suites below who is responsible for the cost of repairs in the suite below?

Thabitha

I am the owner my flat is at the last floor, the water tanks were leaking and damage my kitchen unit and wall. the insurance has paid but they need axcess, my question is WHO MUST PAY THE EXCESS?

an unknown user

I live in a 12 unit three story coop in MD . I was hospitalized for 7 days. . and the next day my neighbor just bellow my unit burst into my unit with 3 workmen claiming that I had a water leak that was damaging their unit.. It was determined that my my heat and air pump had frozen up. ( it was the dog days of August). We have an insurance policy with extended coverage -water damage ,etc. But they have billed me 2500 for water damage to 2 adjacent units on the floor below me; and I have refused to pay on the basis that the coop is the insured, there was no ,negligence by me and the cost of the insurance is covered in our monthly assesments..

bambam

Structural damages from exterior and shoddy roofing job at condo water damaged townhouse downstairs level. My insurance denied claim as HOA took responsibility. The month it took to repair seam in my building continuous water damages. Now after submitting estimates to board they referred me back to my insurance who refuses to honor my claim. Also myself and association have same insurance company, Property damages includes floors, furniture, Mold evidenced. I believe am getting shaft as conflict of interest both having FARMERS insurance. IN mean time HOA received check for warranty of roof I received nothing.

an unknown user

well if no one can answer here I dont know what the point of the coment is. i put an offer on a short sale (as is) that the lower level inside had flooded last year. How do I know it wont happen again? inside is my responsiility right? Also they want me to repair the steps that go to my condo. I guess that is not common area so its ok

John

I live in a complex of 10 my unit is 2nd to the bottom of the complex. Every heavy rain my garage is flooded the common drain is backed up. I had to buy a sumppump to get the water out of the garage. I am now asking HOA for reimbursement of the sump pump because it was the common drain being clogged that caused my garage to be flooded.

Cooperator Editorial Staff

A reminder to readers posting in the Comments section: the purpose of the Comments section is to provide a forum for readers to interact with each other, express their views on the situations and issues discussed in the article, and offer their own experiences and insights. The Comments are *not* a place to post pressing questions or seek legal advice. If you have a legal or procedural question and would like professional input, you may submit it to our Legal Q&A column by emailing your question to editorial@yrinc.com. We will pass it along to one of our contributing attorneys or management professionals, and publish it anonymously in an upcoming print and web edition of The Cooperator. Thank you for your continued readership and support of The Cooperator!

Marie

Has anyone experienced and resolved a situation where a neighboring co op owner infringed on a concealed area of your apartment such as attic space.

Bat question

Who is responsible to treat bats in a 4 building condo? The community is 340 units and 46 buildings. It's very expensive to treat these bats, however, the exterminator is claiming that once they fly out of one building there is a good chance they will fly into another one nearby.

Mike

Hi I live on the top floor of a 4 story coop building. 3rd and 2nd floor units are reporting leaks below in their bathrooms but only sporatically. The last report was 5 days ago from today. Since Sunday i've worked from home 3 days this week, which is above average, taken showers and flushed the toilet numerous times since then (I drink coffee) and they are not experiencing any leaks. We did have a sizeable snow storm in queens last week on Friday (7 days prior) and some massive rain on Monday (4 days prior) to the point where there is noticeable leaks (luckily I exposed some brick walls otherwise it would have leaked into the apt below) running into my apartment but not near the bathroom. The building acknowledges the roof leaks and advises the roof will be fixed in the Spring. I've had a history of leaks in my apartment since I moved in 6 years ago and the building to date has been reasonable and even repaired by drywall ceiling and repainted (they even patched up some unrelated holes in my wall when i couldn't hang a picture properly :) My bathroom is properly vented and I've been very ocd about any water in my bathroom ever since, My caulk is immaculate and the walls show no sign of moisture, weakness, or disrepair near the bathroom. The last I want is to get stuck with the bill The building manager came over today and had me flush the toilet and bathtub faucet for 30 minutes to determine if the leaks were stemming from my unit. after two hours the units below me did not report any leaks. This has been going on now for several months and today is the first day the building actually came to inspect. I want all this fuss to end. Does anyone have any advice or thoughts?

an unknown user

My dad left the faucet on and it make water damage on the bottom unit . The problem is I dont have insurance but the bottom unit have it. They make the repair and i paid for the deductable after few months the bottom insurance company asking over 18,000 dollar for the repair done in the unit and eventually ask for 12,000 if we can do a one time payment deal. They asked for money without any estimate. The question is , Isn't thats the reason why the bottom owner has the insurance, and we paid for the deductable not the insurer. Please reply need second opinion....

unknown

we were offered a michell lama apt in new York city and asked by the assistant manager to buy it sight unseen. is this a normal practice? I insisted we see it first. This sets a bad taste in my mouth. wonder why she thought we would be willing? is this game playing one upminship? the apt was in very bad shape, unlivable. it was whear housed for 5 to 7 years. dust on floor two inches thick. is offering a co-op this way against the law/?

Mark Levine, RAM

@anunknownuser, your neighbor has insurance and by doing so, they were covered for their loss by the insurance company. You do not have insurance but either way, this is the fault of the resident or occupant of your apartment and as such you are responsible for the damage to the apartment below. While the below tenant was made whole, the insurance company for the apartment below is not going to take the loss on the damage that was caused by your unit. Whether or not you have insurance, your apartment is financially responsible to reimburse for the damages that you caused. If the tenant below you did not have insurance you'd be paying for their damage without the intermediary. I would recommend getting insurance in the future but you are responsibie for this payment now.

walter

A coop with 70 units 25 of them receive STAR exemptions. A assessment was imposed on their STAR exemptions the other 45 units were not assessed .This is a form of discrimination.. All units are required to be assessed.


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