Q&A: Elevator Replacement

By Richard T. Walsh, Esq.

Article Options

Q Our six-story Queens condo is considering replacing our elevator. We have stairs, obviously, but getting up and down six stories will be difficult for some of our older unit owners. What legal obligations do we have as the board to provide access to our apartment owners (other than the stairs) to their units during the replacement project?

—Queens Board Member

A According to Richard T. Walsh, Esq. of Horing, Welikson & Rosen, PC in Williston Park, New York, “This is a very delicate situation that will require a great deal of compromise and accommodation by all concerned. Without reviewing the bylaws and other governing documents of the specific condominium in question, I cannot safely say what all of the actual and potential legal risks are.

“In a cooperative or a rental building, a loss of elevator service would be viewed as a possible breach of the covenant of quiet enjoyment and either a partial actual or a partial constructive eviction.

“It is generally different in a condominium. In New York State’s First Judicial Department (in which the Bronx and Manhattan are located), the statutory warranty of habitability (Real Property Law §235-b) is inapplicable between a board of managers of a condominium and the owners of individual condominium units. An individual unit owner cannot withhold common charge payments in violation of the bylaws for conditions in the unit (see Mailman v. Abbady, 216 A.D.2d 115, 629 N.Y.S.2d 6 (1st Dep’t 1995).

“However, this does not mean that there will be no consequences if elevator service is disrupted during the proposed replacement process. Under the bylaws of most condominiums, the board of managers is responsible to maintain the common areas and common building elements for the benefit of all unit owners. In addition, a board of managers is responsible for complying with the Housing Maintenance Code and other applicable laws affecting the common areas of the condominium. See, e.g., Pershad v. Parkchester South Condominium, 178 Misc.2d 788, 683 N.Y.S.2d 708 (Civil Court, N. Y. Co. 1997), aff’d, 178 Misc.2d 788, 683 N.Y.S.2d 708 (App. Term 1st Dep’t 1998)

“In general, if the board deprives unit owners of services to which the unit owners are entitled under the bylaws, the board, on behalf of all unit owners, runs the risk that it will be liable to the affected unit owners for damages caused by the lack of use of elevators. Refer to Board of Managers of Dickerson Pond Condominium I v. Jagwani, 250 A.D.2d 717, 673 N.Y.S.2d 445 (2d Dep’t 1998). This case concerned a genuine issue of material fact as to whether the roof of the unfinished condominium unit was substantially completed, as it would create a contractual obligation on the part of condominium board of managers to maintain and repair the roof, precluding summary judgment on claims by the unit owner for damages resulting from a failure to repair the roof.

Sponsor Ad
Bargold custom builds and installs your Tenant Storage System at No Cost To You while remiting 25% of the gross monthly rental income. Bargold handles all administration services and maintenance.
41-41 38th St., Long Island City NY 718-247-7000 X 111
www.bargoldstorage.net

“Since the project is to benefit all unit owners, the board, in its discretion, could arrange for temporary exterior elevator service (where feasible and cost effective) to the upper floors with increased security to control access to the elevator—with the extra costs being passed onto all unit owners through a special assessment or other, temporary increase in common charges.

“I have also recommended to condominium and cooperative clients in the past that they establish a system whereby affected upper story tenants can be housed in temporary housing and make appropriate reimbursement claims to the affected unit owners for any difference in rent.

“It is important for the board of managers of this condominium to consider all of the risks and costs associated with this type of undertaking. Having an experienced managing agent get involved in the early stages can go a long way towards avoiding many pitfalls and ill feelings.”

Comments

Meisha

What if the elevator goes down, because the sprinkler system in one of the units goes off and floods into the hallway and into the elevator. If we have handicapped individuals in the building that cannot make it to their units, during the time we work on fixing it... are we obligated to find other living arrangements for handicapped owners? It appears that the sprinklers may have gone off because of owner-negligence.

an unknown user

If there are 2 elevators, must the coop keep one running while the 2nd one is replaced?

an unknown user

What if there are 2 elevators in the coop and the plan is to shut down both for 4-6 weeks, denying us on the upper floors access to the other elevator by crossing over the roof, as has been done during prior elevator repairs.


Write your comment

Your name (optional):
Your Comment (required):
Verification (required): img
Please copy the characters from the image above into the text field below. Doing this helps us prevent automated submissions.

Please allow up to 1 business day for your comment to be approved.

Building Operations

On The Board

NYC Living

Newspaper subscription

subscribe Subscribe to "The Cooperator" newspaper - it is FREE. Manage my subscriptions

E-Mail Newsletter

Would you prefer receiving the summary of new articles by e-mail? Your E-Mail: