Who is Responsible?

Making Repairs in Co-ops and Condos

By Dennis H. Greenstein, Esq.

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Imagine this. Your contractor has finally completed the renovations to your bathroom - taking three months rather than the three weeks he promised. The wallpaper, special order wall and flooring tile match perfectly, and although you exceeded your budget, you are very pleased with the results. You leave for a trip and upon returning to your building, you are told by your doorman about the "big flood" in your apartment and how lucky you are to have been away. Filled with anxiety, you rush to your apartment and look in horror at your bathroom. The flood is gone and, essentially, so is your wallpaper and tiling which have been destroyed during the repair of the pipes in the wall. You call the managing agent of the building to ascertain what happened and to confirm that the building will completely restore your formerly beautiful bathroom. You are told it will not. You then call your insurance agent to notify him or her of the damage and to file a claim. Finally, you call your travel agent to book the next flight out of town to avoid dealing with the problem.

The above scenario describes an uncertainty shared by many co-op and condo residents: Just who is responsible for making repairs within apartments and common areas? If you encounter a similar situation, will you have to fork over the money to repair the mess? As a frequently-raised issue affecting cooperative living, this is the source of significant controversy and expense to many cooperative corporations and their shareholders.

Cooperative Obligations

In order to analyze the question of which party is responsible for making repairs to a cooperative apartment, it is essential to understand the relationship between a cooperative corporation ("Lessor") and a shareholder ("Lessee"). The resident of an individual cooperative apartment, unlike a condominium unit owner, is not the "direct" owner of the apartment, but a shareholder in a corporation. The corporation, in turn, is the title or leasehold owner of the land and improvements constituting the cooperative property. Ownership of shares in a cooperative corporation entitles the lessee to a long-term proprietary "lease" that grants the shareholder the right to occupy an apartment.

The lease is signed by an officer of the cooperative corporation, as Lessor, and the shareholder, as Lessee, and contains, among other things, provisions regarding the responsibility for the repairs of both parties. A lease will generally provide that the lessee is responsible for maintaining and repairing the interior of the apartment, while the cooperative corporation will be obligated to maintain and repair all other parts of the building. A typical lease contains four paragraphs dealing directly with repairs: Lessor's Repairs, Lessee's Repairs, Damage to Apartment or Building, and the Right of Entry paragraph.

The co-op is responsible for keeping all of the building, including all of the apartments, sidewalks surrounding courts, equipment and apparatus in good repair. The co-op must maintain all of the items except those portions that are expressly stated to be the responsibility of the shareholder pursuant to the lease agreement. The shareholder is responsible for repairs, however, if they have been rendered necessary by his own act, negligence or carelessness, or any of his family, guests, employees or subtenants.

The shareholder is responsible for keeping the interior of the apartment (including interior walls, floors and ceilings, windows, window panes, window frames, sashes, sills, entrance and terrace doors, frames and saddles) in good repair. In addition, the shareholder must do all of the painting and decorating required for his apartment, including the interior of window frames, sashes and sills. He is also responsible for the maintenance, repair, and replacement of plumbing, gas and heating fixtures and equipment, as well as refrigerators, dishwashers, air conditioners, central air conditioners, washing machines, ranges and other appliances that are in the apartment. The shareholder is also responsible for the exposed gas, steam and water pipes as well as the appliances and equipment to which they are attached. Any special pipes or equipment which he installs in the wall, ceiling, or under the floor are also his responsibility. These responsibilities do not include the gas, steam, water or other pipes or conduits within the walls, ceilings or floors or air conditioning/heating equipment, which is part of the standard building equipment. The shareholder is responsible for all lighting and electrical fixtures, appliances and equipment, including all meters, fuse boxes, circuit breakers, electrical wiring and conduits from the junction box at the riser into and through Lessee's apartment.

If the apartment or the building is damaged by fire or another cause covered by multiperil insurance policies commonly carried by cooperative corporations in New York City, the co-op will be responsible for repairing or replacing the apartment, including the walls, floors, ceilings, pipes, wiring and conduits using standard materials customary to buildings of the type. The building is not required to repair or replace equipment, fixtures, furniture, furnishings or decorations installed by the shareholder or any of his predecessors or to repaint or replace wallpaper or other decorations in apartments or to refinish floors.

Covering the Gaps

Surprisingly, there is a gap in what the co-op is obligated to repair and/or replace in the event of a loss, possibly even if the damage is caused by the negligent operation and/or maintenance of the building. Generally, the co-op would not be required to repair or replace anything beyond the actual structural interior (walls, floors, ceilings) of the apartment. However, this gap can be closed by a first-party benefit homeowners insurance policy. This would provide a source of funds to cover the fair market value of not only loss to personal property such as clothing and furniture, but items such as paint, wallpaper and flooring at the time of loss. Moreover, for a slightly higher premium, a "replacement value endorsement" can be purchased, which should provide the lessee with the additional funds necessary to actually repair and replace all damaged items at the time of loss.

Although most leases contain substantially the same language, slight variations can significantly change the responsibility of repairs between Lessor and Lessee. Further, the house rules of each cooperative corporation vary and, while it is advisable to include all repair provisions within the lease, certain requirements may be contained in the house rules which, unlike the lease, may be amended from time to time by the board of directors.

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Responsibility for Exterior Amenities

The repair responsibility of terraces, balconies and roof areas adjoining a penthouse have been the source of much litigation and dispute since they not only affect the cooperative corporation but frequently other shareholders. Leaks have damaged neighbors' apartments and personal property. Some buildings have amended their leases to provide additional responsibilities to the terrace owners beyond the requirement typical in most leases. For example, most leases merely require the shareholder to keep the terrace, balcony, or roof area free of debris, snow, ice and leaves. Many leases now require the lessee to maintain the terrace, balcony and roof area in "good repair". Most leases provide that any costs related to the removal of structures installed by a shareholder on terraces, balconies or roof areas, when repair on the roof or building structure is necessary, shall be borne by such shareholder, along with the costs of restoring such structures.

When structures on roof areas are to be built, the consent of the board is necessary. It is important for the board to establish and/or clarify, among other things, the responsibility of maintenance and repairs thereafter. As in all proposed alterations, the building should require the lessee to execute an "Alteration Agreement," which may include future responsibilities for repair by the lessee for improvements he had made. The enforcement of house rules established by boards to approve or disapprove the placement of planters or other objects on roof terraces of apartments has been upheld by the courts as reasonable. The decision of a board to replace the surface of the roof terraces with concrete pavers rather than quarry tiles has also been upheld by courts citing board authority in both the bylaws of the cooperative corporation and the lease. Courts have emphasized that, "Inasmuch as the board of directors has the obligation to the repair the roof terrace, it should also be able to choose what type of floor surface is appropriate under the circumstances."

New York City Laws

The Multiple Dwelling Law and the Housing Maintenance Code of the Administrative Code of the City of New York require a landlord (including a co-op corporation) to maintain the premises in good repair. This duty includes structural repairs in the building. Generally, interior walls and ceilings within apartments are the responsibility of the landlord. In addition, Section 235(b) of the New York Real Property Law, referred to as the "warranty of habitability", requires a landlord to provide a building which is safe and habitable. However, the lease and facts particular to any dispute will determine the responsibilities of the lessor and lessee for any repairs in the building and apartments.

In determining whose obligation it is to remove housing code violations, an accommodation must be obtained between the leasehold obligations of the parties, while recognizing the obligations under the Housing Maintenance Code and the "warranty of habitability." Thus, while the shareholder is entitled to the benefits under the warranty of habitability and the Housing Maintenance Code and the cooperative corporation may be required to remove violations in the apartment in the first instance, the cooperative corporation is free to pursue any remedy against the lessee for his or her non-compliance with obligations under the lease. For example, most leases require the shareholder, not the cooperative corporation, to paint the interior of the apartment. Should the lessee fail to comply and a violation be placed on the building, it would be the lessee who would be ultimately responsible to cure this violation. Thus, even though the cooperative corporation in the first instance may be statutorily responsible to remove the violation and have the apartment painted, it could then charge the shareholder for the repairs, bring an action for its costs or proceed to terminate the lease as a result of the contractual responsibilities under the lease.

What About Condominiums?

Unlike cooperatives, the courts have determined "that the statutory warranty of habitability does not apply between a condominium unit owner and a board of managers since condominium unit ownership is a form of fee ownership of property and not a household interest involving a landlord/tenant relationship." However, as applicable to cooperatives, the Multiple Dwelling Law and Housing Maintenance Code, Building Code and Health Code of the City of New York are applicable to condominium units.

The responsibility for repairs to the individual condominium units and the common areas is based upon the by-laws of the condominium which typically contain a section entitled "Maintenance and Repairs." This section specifies which items are to be maintained, repaired and replaced by the unit owner or the condominium. The unit owner is generally responsible for all fixtures, appliances, and electrical and plumbing installations within the unit except if they are located in common elements and serve one or more units. The board of managers is generally responsible for all common areas except those limited common elements which are maintained by owners of units who use them exclusively. Likewise, the board is not responsible for the repair if it is necessitated by the negligence, neglect or misuse of a unit owner or his invitees, licensees or agents. In such a case, the expense is charged to the unit owner.

Article 9-B of the Real Property Law (the Condominium Act) states in part, "each unit owner shall be deemed the person in control of the unit owned by him or her, and the board of managers shall be deemed the person in control of the common elements, for purposes of enforcement of any such law or code, provided, however, that all other provisions of the Multiple Dwelling Law or Multiple Residence Law, otherwise applicable, shall be in full force and effect."

Know Your Building's Rules

While most lease provisions and by-laws are standard regarding the obligations for repair, there are instances where the facts and building's structure are particular and require specific clauses to adequately and equitably deal with the situation. Each building has its own personality - what is appropriate for one building may not be for another. It is important for each board to review with its attorney and managing agent the legal and practical issues relating to this topic. The institution of a requirement that all lessees maintain insurance can also reduce costly and protracted disputes and litigation. The board must create a lease, by-law provisions and insurance requirements which clearly define the responsibilities of the building and its residents. Hopefully, that process will result in a clarification of in the lease, by-laws and/or House Rules, minimizing the disputes and costs which arise so frequently.

Mr. Greenstein is an attorney and a partner in the Manhattan law firm of Greenstein Starr Gerstein & Rinaldi LLP.

Comments

an unknown user

My pergo flooring was damaged by water from a building pipe . The coop will not fix because I installed the flooring. Are they right ?

ram

roof repairing should be done by all flat owners or the one who stays on topmost foor?

remorales

If I wisih to do a complete wall tile job in the bathromms ,Am I resposible for chaging the wall pipes in the shower/bathtub area ?

kk

Must landlord be responsible for the maintenace and repair or air condition. Can I shift the duty to tenant. This is NYC condo

Blindjustice

I came home to find my furnace/humidifier leaked water for over a week and damaged the unit below me. Am I responsible for his repairs? Illinois

donna

contrary to this article, my occupancy agreement does not hold the shareholder responsible for, as cited in this article: The shareholder is responsible for....including all meters, fuse boxes, circuit breakers, electrical wiring and conduits from the junction box at the riser into and through Lessee's apartment. How can the shareholder be responsible for wiring in an apartment, especially if the electrical wiring is over 50 years old and is within the walls? nothing in my occupancy agreement holds the shareholder responsible for the fuse box and wiring from the junction box at the riser. I am a bit confused. Thanks

J Carlone

I have a rental apartment in the Bronx in a private house which is undergoing bathroom renovation in one of the three apartments. I reduced the rent by $200 a month until said repairs are completed and my tenant (who is family) agreed to the decreased rent and has access to the other two bathrooms in the house. Does he have the right to hold the rent out on me completely until said renovations or is he obligated to pay me the rent minus the agreed-upon amount until said repairs are made?

samantha

when renting an apartment and the cable wiring does not work in the living room or in one of the bedrooms and the cable company tells you the apartment is resonsible and the apartments tell you they want you to have the cable company fix it and also have you pay for it who is responsible?

Grace

I am shareholder, the water shutoff valve with wall, it is leaking, who pay for the replace it. Thanks

chuck

just moved into an apartment Georgia, broadband cable advertised on sign, guy comes out and says wires over 20 years old RG59's in walls must be replaced with RG6 by apartment cause apartment owns wires inside wall. The apartment, stubbornly, says it's not theirs, it belongs to the cable company. How do I aproach this?

Jon

"What About Condominiums? Unlike cooperatives, the courts have determined "that the statutory warranty of habitability does not apply between a condominium unit owner and a board of managers since condominium unit ownership is a form of fee ownership of property and not a household interest involving a landlord/tenant relationship." However, as applicable to cooperatives, the Multiple Dwelling Law and Housing Maintenance Code, Building Code and Health Code of the City of New York are applicable to condominium units. The responsibility for repairs to the individual condominium units and the common areas is based upon the by-laws of the condominium which typically contain a section entitled "Maintenance and Repairs." This section specifies which items are to be maintained, repaired and replaced by the unit owner or the condominium. The unit owner is generally responsible for all fixtures, appliances, and electrical and plumbing installations within the unit except if they are located in common elements and serve one or more units. The board of managers is generally responsible for all common areas except those limited common elements which are maintained by owners of units who use them exclusively. Likewise, the board is not responsible for the repair if it is necessitated by the negligence, neglect or misuse of a unit owner or his invitees, licensees or agents. In such a case, the expense is charged to the unit owner. " What if the issue was an power outlet installed by the condo and that the wires inside the outlet were poorly wired that caused a spark and burnt wires. Would that be Condo issue or Unit owner issue?

Natasha

I have a leak from my sink in the apartment kitchen. I own the apartment but the super and handyman state I have to repair the leak myself by getting a plumber in. Isn't that what all the monies go to when living in an apartment. My super and handyman should fix it, not me hiring outside help to fix things.

an unknown user

president is absent, structure needs attention president is absentee. building as cracks on upper walk way. nees to see if there is any thing under the cracks. so poke with the president to, seems not concern. is he responsible because of his neglet?

Susan van Buren

Question: We live in a condominium. One mail box door has totally rusted and the little rod holding the door into the mail box structure has sheared off due to deterrioration. The owner wants it fixed. The mail carrier wants it fixed due to legal issues and the mail, but the association won't pay for it. It is on the outside wall and contains 4 individual mail boxed all in the same unit inserted into the structure of the stucco wall. Who is responsible for the repair of this and where do we go to get it fixed? Thanks, Susan van Buren

louis feliciano

i own a condo and have air condintion supply line that has bad leak which the lines run thru three other units attic and are incased on the outside of building in concrete to get to my compressor. my repairman states that my supply lines needs to be replaced. Who is reponsiable for the cost of repair of said lines? condo assoc. or unit owner

NYC Condo

What about a door to a Balcony in a Condo. The door in question was imprpoerly installed (prior to purchase) and leaks when it rains. Is this considered part of the structure/common element in which case, per the by-laws the associaiton is responsible for repairs?

Emily Everett-Franco

Am I responsible for costs related to repairs, maintenance, and electrical usage in a basement that is exclusively owned by the sponsor of my cooperative corporation? please advise.

kassie

am i responsible for an electrical surge cause by meter malfunction that destroyed tenants computer and PlayStation?

Marc

Please answer the questions on the electrical surge. My condo tenant's were using the Stove, which also blew out, because of a power surge. We called the Condo's certified Electrician, who said 2 modules inside the Stove were burnt out because of a power surge from the Condo during maintenance work. They electric box has a power surge protector but failed to work. any advice is welcomed. Thank you.

Condo owner

I have a terrace where my dog occasionally pees. A condo board member tried to tell me based on a "complaint" by another unit owner that the terrace is a common area and that they can compel me to block off the area to my pet. I paid for the terrace when I bought the apt so I told him it is outside their purview even on this matter which I myself am inclined to correct sooner than later. Any thoughts? Thanks

an unknown user

our nyc coop installed a completely new intercom system in the lobby/building and a new in-"phone" in each unit. problem is, our original "phone" was bigger so the old hole in the wall is showing under the new panel holding the phone. shouldn't the building automatically fix (and pay) for this? the super seemed to have an attitude about it, and i have not yet pushed the issue.

an unknown user

Is a co-op in the state of Florida required to carry a Master Flood Policy?

gg

I own a coop, no insurance at the time water flooded apt downstairs. I said I take care of it to get an estimate. He came back with ceiling damage repair cost of 2688. He said he would pay them and I should give him a check. Shouldnt I have a say in chosing a contractor if I get a better estimate? And Pay them directly?

Miriam Black

On Saturday, June 8, 2013, while in my son's co op on 35th Avenue in Jackson Heights, I reached for a glass in the kitchen cabinet and the entire cabinet came down on me. This cabinet was installed before my son purchased this co op. After a day in the emergency room, getting a cat scan and a tetanus shot. Thankfully, I will be alright. However, to my dismay, the Queen Mary Corporation will assume no liability for the replacement of the kitchen cabinets. The cost is minimal but even though my son did not install these cabinets, he bought the apartment as-is. The cabinets were not hanging off the wall, there was no noticeable damage, they were not installed properly. Possibly installed by the former owner. This attitude makes me realize that the word COOPERATIVE is truly a misnomer. Does my son have any recourse?

PAMELAMOND@GMAIL.COM

WHO PAYS TO REPLACE AN OLD ELECTRCAL BOX THE OWNER OF THE APARTMENT OR THE TENANT ? THANK YOU

luna

Are handymen responsible for repairs to unit owner custom bathroom work? Unit owner wants job done by building to avoid paying contractor.

an unknown user

I live in a coop. Our upstairs neighbor had a clog in their bathroom sink on12/4 and they called the Super to help them fix it. But when he snaked it, black gunk spilled out all over the floor. I didn't get home until later that night and saw a bubble with water dripping down into my sink. I called the super and he called the upstairs neighbor and they called a plumber. I thought the problem was fixed but it wasn't. The neighbor's son came down the next day and told me what happened and felt the super made the problem worse and caused the water to leak into my bathroom. When the leak continued I went upstairs to see where it was coming from but could not find it and brought down their plumber and the neighbor to show them the leak. She asked her husband to turn on the shower and the water was pouring out of the crack in the ceiling. She said it was not her responsibility and told us just to call our insurance and get it fixed. Her son had called the coop mgmt company and we have not heard back from them yet. Who's responsibility is it to pay for this? We didn't cause our ceiling to leak.

Manager

Most of the comments on here crack me up. You guys are OWNERS of a property. You own everything inside the apartment thus you are responsible for repairing and maintaining it. Electrical is your responsibility from your circuit breaker through out your apartment. The building is responsible from your breaker box to the main located in the basement or a utility room.. The kitchen cabinet story cracked me up the most. When the "Building Pays" as you guys like to put it this money is coming from the collective maintenance that is paid each month. This means when the "building pays" for something in essence your neighbors and yourself are covering this cost in a collective round about way, Why should the residents in your building be responsible to pay for kitchen cabinets that were improperly installed by a previous owners contractor? If you do not like paying for repairs inside your apartment RENT!!! The last comment about the plumbing leak seems like it would be an owner to owner leak depending on what the cause of the leak is. If it is bad grouting or faulty shower body this would all fall on your upstairs neighbor to repair. If it is a building maintained plumbing line in the floor then the building should be responsible to repair.

Sharon Azar

A few days ago, board member in the front apt. (1st fl) said her apt. was cold. The heat has been fine in my apt. which is in the rear of the bldg. 1st fl. Then the bldg. mgr. called (Wednesday Jan. 8) and left a message asking about the heat. I responded that it was okay. That very evening my apt. became so cold I had to wear a hat, scarf and layers of clothing in the apt. Now, Thurs. morning I'm freezing. There is very little heat coming through the radiators. In the past when my apt. was freezing I was told the front apts. were fine. Seems to me there's an inability to adjust heat delivery evenly. What are my options?

an unknown user

My mothers condominium in Florida was flooded due to rain. The HOA is claiming they are going to come into her home and remove all wallpaper 3/4 of the way up from the floor and remove cabinet doors. Who is responsible for this cost? They claim they want to prevent mildew. My mother is 91 years old and lives on a fixed income. What recourse does she have? She did not have flood insurance.

an unknown user

My condo was damaged by fire caused by renters in condo downstairs, renters don't have renters ins. Does the owner of the unit or her insurance bear any responsibility (not covered by HOA Ins.) for repairs to my condo and loss of personal property. Unfortunately my own insurance is not enough to cover my loss of use, personal property loss and structural repairs.

Walter

Is bill A4090 in effect? The bill says coops must distribute STAR exemptions within 60 day upon receipt of their tax bill or be fined $500 for each violation. Also it states eligible shareholders may withhold their maintenance until they recoup their STAR

Lynne NYC

Who is responsible for ice in the common area of parking lot? Also, if you are injured are you entitled to a copy of accident report?

Jenny Foehner

We own a Co-Op. Last year we had to have our ceiling repaired due to a leak in the upstairs toilet and then again when that repair failed. then a few months later 75% of Our bathroom ceiling fell in due to a leak with the upstairs shower and damaged our custom made shower. We reluctantly agreed to let the board choose who would do the repairs. We were asked to find the serial numbers for the parts and when I sent the part info to the building manager he told us to buy the parts and pay for them. I asked that we would be paid back as soon as we provided an invoice and he sent us a letter of agreement. We did not see any payment for 3 weeks so we took the money owed out of the maintenance. After 5 months of having no shower and bathing with a hand held attachment that was part of the shower but that hardly worked we finally got the cieling fixed but it was fixed badly, the ceiling was bowed and the contactors assistant came to fix the badly installed ceiling but it is still crooked. It had taken a long time to get the repairs done due to shower parts being back ordered and because I was asked to do the work looking for the parts when I was alreadt busy with my own job and am not a plumber so needed lots of advice from the supplier. The plumber's assistant came and could not install the shower as I had purchased the riser pipe that would not fit due to a beam in our ceiling, He had to come back and work again when we got the parts we needed. The board want us to pay $400. for the first visit. We have never asked the building to pay for things that we lost and had to buy again when the bathroom was covered in wet, heavy ceiling. We were without a shower for 6 months, no fault of our own and we are the bad guys. Do we have to pay the plumber for the first day?.

Ann

There is a leak to the basement where noone lives since I live on first floor. The super told me to fix my batheroom tile because of the leak to basement. I dont see any leak or crank on my batheroom tiles. super assumed it is my batheroom tiles. I asked what is the proof to management and mgt said they wanted me to fix my batheroom tiles and grout. If still leak, mgt would check something else. This super charges too much money. He charges $250. He charged me for change batherroom and kitchen faucet for $300 labar materials separately last t ime. Who is responsible for this leak to the basement? Mgt tries to blame on me. Mgt dont know where is the leak coming from? I dont want to spend the money which is not my fault. Leak could be from the building pipe or Other shareholders. What is the proof? Please advise. Thanks

vasya

I am renting the Apt. in COOP building over12 years.Now, the unit-owner has intention to sell the apartment, and I found the different apt. in the same building for rent....Should I pay the fees,board,check the credit history as a new tenant?


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