Building Maintenance and Repair

Whose Responsibility Are They

By Richard T. Walsh, Esq.

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The increase in the number of co-ops and condos in New York City has changed the way many New Yorkers live. Renters who have purchased a co-op apartment have become owners of stock while condo owners posses a block and lot. The traditional landlord-tenant relationship enjoyed by these former renters has been replaced by other relationships that are quite different and sometimes confusing. In co-ops, the tenants are owners of their own landlords; while, in condos, the tenants are landowners of their individual units and they acquire an undivided interest in the common elements of the condo.

These new relationships are sometimes at odds with health and safety laws that were originally aimed at correcting imbalancesperceived or realin the normal landlord-tenant relationship. As a result, shareholders and boards of directors of co-ops as well as unit owners and boards of managers of condos will often hear the question: Whose responsibility is this, anyway? especially when maintenance or repair issues come up.

General Obligation Rules

The mutual obligations between shareholders and the co-op are governed by the co-op's proprietary lease, house rules and by-laws. Under most proprietary leases, the co-op is responsible for structural repairs to the building and repairs to the common elements of the co-opall parts of the building that are not inside the individual shareholders' apartmentsand repairs to the interior of shareholders' apartments, if the damage has been caused by the co-op's negligence. If the co-op makes repairs for which the shareholder is responsible, the co-op is entitled, under most proprietary leases, to charge the shareholder for the cost of those repairs.

In condos, the repair obligations are set forth in the governing documents such as the declaration establishing the condo, the by-laws of the condo and the individual unit deed. Under the Multiple Dwelling Law (within New York City) and the Multiple Residence Law (outside New York City), each unit owner is deemed to be the person in control of his or her apartment, while the condo's board of managers is deemed to be the person in control of the common elements of the condo for purposes of enforcing those laws or codes.

In condos, unit owners are responsible for complying with regulations regarding window guards, smoke detectors, asbestos removal and lead paint abatement inside the unit, while the board of managers is responsible for repairs and other health and safety laws in the common elements. Windows, however, are generally considered part of the common elements; and, therefore, are the responsibility of the board of managers.

If there is a question as to who is responsible for the damage inside a condo unitfor example, a water leak that may have been caused by a problem in another unitthe board of managers must investigate. If the damage is found to be the result of a problem in a common element of the condo, then the board of managers must make the repairs; otherwise, the unit owner is responsible.

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The Co-op as Landlord

Where health and safety matters are concerned, there are exceptions to the general rules regarding repair obligations in co-ops. Under the New York City Housing Maintenance Code, a landlorda term that some courts have held includes co-opsis primarily responsible for making all repairs in, and to, housing accommodations that are part of a multiple dwelling with three or more housing units. This statute even obligates landlords to make repairs in cases where the tenant has caused the damage, although the landlord is entitled to sue the tenant to be reimbursed for the cost of repairs caused by a tenant's wrongdoing.

Almost all residential co-ops in New York City are multiple dwellings. Some courts have forced co-ops under the Housing Maintenance Code to make health and safety-related repairs in apartments even though, under most proprietary leases, the repairs in question are the shareholder's responsibility. Fortunately, in most of these cases the courts have also upheld the co-op's right to charge back to shareholders the cost of those repairs.

Areas that should be of concern to co-ops as part of the primary responsibility as landlord include window guards, smoke detectors, asbestos, lead paint and repairs to building exteriors including facades. It's the responsibility of the owner, lessee, agent or other person who manages or controls a multiple dwelling to provide, install and maintain window guards in every window of every apartment and public hallway in co-op buildings where a child under the age of ten resides, except when the window leads to a fire escape.

If a shareholder fails, or refuses, to notify the co-op of the presence of a child under the age of tenor removes the window guards after they have been installedthe co-op must take steps to ensure compliance. Under these circumstances, I believe that a co-op would be within its rights to invoke the emergency access provision under the proprietary lease to enter the apartment of a non-complying shareholder to install window guards.

Smoke detectors are also the responsibility of landlords to install and to maintain, although in a co-op the cost of repair or replacement should be passed along to the shareholder who removes the smoke detector, fails to replace the battery or damages the detector. If there are children under the age of seven living in an apartment and there is lead paint present, the co-op must take immediate corrective measures. The landlord is strictly liable if corrective measures are not taken.

Surveys and Inspections

To deal with window guards, smoke detectors and lead paint, co-ops should send shareholders an annual survey requesting the ages of children residing in each apartment, whether or not there are window guards and smoke detectors and the date that the batteries were last replaced, and whether there is any cracked or peeling paint or plaster that could be a sign of other problems in the building. These surveys should then be followed up with a physical inspection of each apartment to ensure accurate responses and compliance with the applicable laws and regulations.

These tasks can be delegated to the managing agent, who is usually better equipped to handle the logistics of getting out all the surveys; but, ultimately, the risk of non-compliance may fall on the co-op and individual board members, if someone gets injured or dies because the co-op failed to take simple preventive measures. If the co-op does delegate these tasks, the co-op must follow up with the managing agent and make sure that the surveys are completed and any corrective work gets done.

Condos should consider adopting a similar survey plan even though the individual unit owners are responsible for the conditions inside their units for a number of reasons. Lead paint or asbestos could affect other areas of the condo through water leaks or improper removal. In addition, the statutes, rules and regulations could change or a court could ignore prior court decisions and apply the Housing Maintenance Code (or other statutes) to condos. In addition, by surveying unit owners annually, the board of managers may be able to eliminate potential problems while they are still minor and before they become a big headache.

The co-op or condo building's common elements, including its exterior facade, the elevator and steam, waste and water pipes, should be inspected regularly. Periodic inspection and maintenance of the building's facade is mandated in New York City by Local Law 11. The Housing Maintenance Code and the Multiple Dwelling Law also require landlords to keep buildings and their fixtures in good repair. Elevators are another area that can create problems for co-ops and condos. Even though New York City inspects elevators on a semi-regular basis, co-ops and condos should have their managing agents and elevator maintenance contractors inspect and test the elevators at least annually and make repairs as needed.

The failure to inspect or to make needed repairs or other maintenance could result in civil liability for a co-op and increased maintenance charges to shareholders for emergency repairs when preventive maintenance is usually cheaper, safer and smarter. In a condo, failure to take action can result in increased common charges to the unit owners for emergency repairs. Both co-op and condo boards can potentially face criminal charges and fines, especially where elevators are concerned.

Boards should meet with their managing agents, and other members of their professional team including their attorneys and engineers, to review compliance with applicable laws and regulations before problems occur. Clearly, an ounce of prevention is worth a pound of cure.

Richard T. Walsh is a real estate attorney based in New York.

Comments

Teresa Koczorowski

When owning a condo; which party is responsible for plumping/pipe repairs outside the unit but connecting to one's bathroom. Town responsibility? tkoczor767@aol.com

an unknown user

during pipe replacement in our condo, access to pipes was done thorough each bathroom, instead of common area flat walls, resulting in damage to 68 bathrooms, which in the end were poorly restored.

MIKE D FDNY

MY COOP IS CLAIMING THE STEMS (ON AND OFF) VALVES ARE MY RESONSIBILITY. I HAD NOT USED MY BATH FOR 3-4 YRS BECAUSE I SUSPECTED THEM OF LEAKING.

Mary Lou

Is the co-op responsible for window replacement?

Chen SY

In a condo, the upstairs unit's sewage pipe & cold water pipe were leaked & cause the flood to the downstairs unit. Who is responsible for the repairs, the upstairs owner or downstairs owner?

Anthony

An adjustor for my homeowners ins deemed water damage in my ground floor coop to be foudation leakage- the co op disputes this saying the water came in through air conditioning unit (this after inspection by super and managing agent) . Is there an way I can force them to at least send in a rep from coops ins?

lynn

in a co op in westchester county ny are the steam pipes in the units considered common elements or are they the individual owners responsibility

MJ

The directors decided that the porches would not be included in their maintenance. Most of them have been enclosed into rooms, but mine has not. When I bought it, everything on the outside was supposed to be included. They do the stairs, but the condos int he other building have a lot of outside stairs, and I only have one. He asked us to sign that this had changed and we knew it. I did not sign.

Mark Levine

@Mary Lou: The responsibilities of the Shareholder v. Corporation will be in the Prop Lease for the cooperative. I've never seen an Offering Plan and Prop Lease that doesn't say that the building is responsible for window repairs. I can think of too many reasons why the building would want control over this (aesthetics, quality, build. heat control, liability, etc.) Check your building docs for the sure answer.

TC

If the co-op is responsible for replacing a boiler to the entire building, are they also responsible for insuring that the steam pipes and asbestos coverings are in good repair in each unit? Is it the responsibility of the resident (Lessee) to pay for asbestos removal and abatement or the Co-op community at-large if required in Indiana?

Kathy

My co op ( A Mitchell Lama Building) received water damage after a terrible storm . The water came in threw the walls. Who is responsible for the water damage to my carpet and if its the building how long do they have to fix it. The building manager has been out sick ever sence this has happened and I can not get any answers from anyone. The only person to come and inspect was the super and he said do not remove the carpet. It has been 3 days and the carpet is starting to get smelly and molding.

Kathy Fanning

a pipe broke in my bathroom wall. I am told that since a renovation was made to the bathroom since it was built 1921 . I'm responsible .

azmi

how we could improve company <a maintenance management without get any losses?

an unknown user

What a lot of people fail to remember in any of these instances is that it is still your money paying for these types of repairs regardless if the association dishes it out or you have to. Most of the time if there are large losses and the association has to cover the repairs you might get hit with an assessment or an increase in your maintenance costs. The key to a healthy association is owners that do not push for everything to be covered. There are a lot of grey areas in association governing documents.

Elsa Trofibio

My aunt owns a condo. The condo on top of hers had a plumbing problem that was leaking to her bathroom. they open a hole in her wall to see the condition of her pipes. They were rusty and with leaks. Is the building association responsible for this repair or is she?

an unknown user

The upstairs bathroom leaked into the bathroom of our ground floor NYC coop during renovation. We had not yet moved in. The person working on the floor discovered the leak and tells us that there was water on the newly installed wood floor outside the bathroom when he arrived. After a couple of weeks the new wood floor buckled. The super, his helper and the managing agent were in the building and came to the apartment. They were angry at the time that the worker had not notified them sooner. Now they claim that the damage is not due to water, but to faulty installation. There is no basement under the floor. The flooring sits on joists that sit on crushed rock. However, the only place that the floor is buckled is outside the bathrom and not in other areas with the same condition beneath.

peter

who needs pay window guard in a coop apartment. landlord or tenants?

Theo

EMS had to break my aunt's co-op door to get to her. The door is badly damaged. Who is responsible for replacing the door? Is it her's or the co-op building?

an unknown user

Concerned shareholder in NYC. Since the beginning of 2011, we have been subject to an especially tough winter. Our building experienced a number of violent storms with extremely high winds, which are exacerbated due to the direct exposure to the Hudson River and we are billed for the replacement of the fiberglass panels separating the terraces between two apartments. Due to these conditions, the separation on our terrace was eventually blown out over the course of several of the aforementioned storms. The panels in question were replaced without any prior notice and without being consulted on the issue.  We need advise on how to proceed and what coop law are we covered under.

rachel

We are a coop owner. We have notified the Management to repair a leak on the ceiling in the stairway a month ago. Nothing has been done, where else can we file a complain to get them repair the ceiling?

an unknown user

Please advise on a situation where a non owner of a coop has a back door to her courtyard that is non-functional and the paint has almost totally peeled off. The Super has offered to replace her door, but she refuses. Is there a responsibility for the sponsor to maintain the back door functioning and facade appearance of the door as it is a real eyesore for the rest of the owners? The sponsors have a history of very bad cooparation with the Board of the Coop. Thank you for any advice.

Wendy

I want to rent out my coop and was told I had to get a lead paint assessment. Well having lived in my apartment fo 10 years I now find I have lead paint on certain walls. The coop management says I have to deal with this before I can rent out m apartment. Who is liable for the lead paint on the walls which was before i bought the place? Thanks for any advice?

Thomas F.

We live on the second floor of a coop in NYC and have had scaffolding go up for extended periods of time over the last 20 years we have lived here. It impacts us greatly, and in this case it is going back up for 6+ months to redo a botched job on the facade. Do we have any recourse in terms of a relief in maintenance during the work? Being on the second floor means we, and ONLY US on the second floor are impacted DAILY by the WORKERS, THE COMING AND GOING, THE DEBRIS and THE LOSS OF VIEW. We have had scaffolding for probably a total of 41/2 of the 20 years we have been here. ENOUGH IS ENOUGH. Is there any recourse? Please advise. THANK YOU

Mark B. Levine, RAM (mblevine@ebmg.com)

@Wendy, the issues within the apartment are typically attributed to the apartment and not the current Shareholder. Meaning, that if you have lead paint on the walls, it is up to the current shareholder to rectify the condition, and it doesn't matter if you occupied the space during the time that the condition originally came into play. The assumption is made that due diligence is taken at the time of your purchase and that you bought the apartment as-is, problems included. Just make sure that you use a lead-safe certified firm, as required by the EPA. The management company that you have in your building can probably recommend someone if you don't have a painter that has the proper certifications.

william Schiavo

I have 2 lose beams in my coop on the first floor in my living room. Who is responsible? When i had a contractor with insurance pu in tiles in the bathroom and kitchen the beams moved a year later. Who is responsible? They never inspected the four family building since they build it in 1957. What can I do?

mcz

my floors were damaged due to water coming in as the window installers forget to seal the outside of my terrace windows; coop refuses to pay saying that since I renovated they're not responsible; also my maintenance has gone up about 35% inthe 10 yrs. that I've lived there to a point where it's almost impossible to sell.

an unknown user

When I turn on the kitchen faucet at my condo apt located on 20th Fl. to wash dishes, the shower in the master bedroom begins flooding. The water comes through the shower drain and floods the shower. The shower in the master bedroom is unusable. Who is responsible for this? Building maintenance ?

Mike

Who is responsible for the a/c maintenance in my New York City co op.

an unknown user

the radiator pipe in my unit rusted out and starter leaking. causing my hard wood floor mold and discoloration. who is responsible for the repairs?

Anne

I cannot find a local contractor to do dryer vent cleaning in my condo unit on a weekend, having called multiple times to various contractors. They now want to fine me $125 a month. 1) Are they allowed to fine me when I have called local contractors who are not available on weekends or do not answer my call? I live in another state now--60 miles away, but still own the property in CT. 2) Are they allowed to fine me when they have a contractor for this who will not call me back to schedule an appointment. I have been calling him for months--finally had an appointment, only to be canceled 2 hours before the cleaning. I even offered to the community to schedule the appointment for me, but got no reply. Thank you, Anne

Cookie Thames

I live in a condo in MI. The Association hit us with a $1300.00 extra assessment fee to cover new pipes/plumbing throughout the complex. Must I pay this or is it ok if I used my own licensed plumber to do my pipes/plumbing?

mef

had blocked toilet pipe it was determined block of wood was dropped down pipe on roof it three days for necessary repairs resulting in missing three days of work and without full use of my bathroom am i entitled to compensation from landlord

Michael

Is managment responsible for windows repairs? I have dust and water inside 2 layers of glass.

mrs ward

do shareholders have a right to inspect the common areas of the ?...... Particularly which affrects their peace and comfort and who is responsible for the mechanical bathroom/kitchen vents that are malfuntioning. and creatind dust/noise

kathy mcneely

who is responsible for the windows that are chipping away from water penetratons. tks

Celia

My downstairs neighbor's engineer discovered the floor to my bathroom was not up to code when renovated before I purchased my share. The Board is saying the costs are my sole responsibility since I purchased 'as is' not the boards however it is structural. Did they not follow protocol when permitting the repairs, and therefore is the building responsible?


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