Q&A: Board Refusing to Fix Leaky Roof

Q I am a shareholder in an eight-unit co-op in Brooklyn. The board is composed of all eight owners, of which there are four officers. My apartment is on the top floor, and over the past few years I have sustained over one dozen water leaks due to a faulty roof. In the past, the board did quick repairing and flashed the roof to prevent leaking. But, now it appears that there is serious buckling and a large portion of the roof may need to be replaced. The association does not have the funds to repair it, and the owners will not vote to make an assessment to repair it. In addition, the rest of the board challenges me when I have asked for reimbursement for internal damages due to their negligence. The board has spent a lot of money on hiring others to clean the building and empty the garbage, and I feel that this money could have been put to better use. The rest of the board will not listen to my financial suggestions, and since the leaking roof has not effected their units, they do not care about it. The board president actually referred to the roof as my issue.

What legal recourse do I have? Is the board responsible for my internal damages? The bylaws say that the building must be kept in first-class condition, but no mention is made of who should pay for internal damages to my unit due to their negligence.

—Frustrated Unit Owner

A “Ownership of a cooperative apartment is created by two key elements; the first being the issuance of shares of stock in the corporation in the shareholder’s name and the second being the delivery of a proprietary lease which creates the right and obligations of occupancy,” says Manhattan-based attorney, Lisa Breier Urban, who is with the law firm of Breier, Deutschmeister, Urban & Fromme, PC. “In the conveyance of the proprietary lease, a landlord-tenant relationship is created between the board of directors and the shareholder. That landlord-tenant relationship plays an integral role in this situation.

“The writer mentions having consulted the bylaws of the cooperative but not whether he looked at the language of the proprietary lease. Most cooperative proprietary leases contain similar language. Nevertheless the phrasing of the words can shift the burden from one party to another. It is always important to check the language of the proprietary lease to determine where responsibility lies when a question of repairs arises.

“In general a shareholder is required to make repairs within the apartment while the board is responsible for repairs to the building elements. Ordinarily, the corporation will be required to maintain the major systems within the building. Similarly, the roof normally falls within the province of the board of directors to maintain and repair, unless the proprietary lease has shifted that burden to the shareholder.

“The landlord-tenant relationship created through the ownership interest along with the terms of the proprietary lease helps determine who is responsible for repairs in an apartment but statutory obligations will contribute to the equation. The main statutory principle is the multiple dwelling laws and the warranty of habitability, which guaranties the right to live in an apartment that is in habitable condition. This principle applies whether the resident is the shareholder or a rental tenant.

“The board of directors has an equal responsibility and fiduciary duty to every shareholder whether that shareholder lives on the first floor or the top floor. In our writer’s situation, if the proprietary lease has not shifted the burden to maintain the roof to the shareholder, then the cooperative must make the repairs. In turn, the board is responsible for damage to the unit owner’s apartment and personal property resulting from the failure to make these repairs. The writer should consult with legal counsel to determine what steps can be taken to compel the board to make these repairs. Additionally, assuming the writer has homeowner’s insurance, he should inform his insurance company who ought to be able to deal with the problem on his behalf.”

Comments