Condo and co-op communities are governed by an array of legal mechanisms, including state and local laws and the community's own governing documents. Governing documents such as the proprietary lease, condo declaration, bylaws, and house rules cover most issues that arise, but when it comes to handling less-common legal disputes and litigation, condo and co-op attorneys quite often look to decisions made in previous disputes to either support their claims, or to counter the claims of the opposing party.
If a building finds itself embroiled in a dispute, it is likely a similar type of dispute has happened in another building at some point before. Also likely is that there is a relevant lawsuit, whose decision can help your board decide its best course of action. The following are some interesting lawsuits, whose decisions are instructive to co-op and condo boards.
Behind Co-op Walls
Who is responsible to repair, the co-op or the shareholder? Generally, shareholders can look to the proprietary lease to determine who is responsible. According to Marc H. Schneider, Esq., the managing partner of the Garden City-based law firm of Schneider Mitola LLP, “a typical provision in a co-op’s proprietary lease would, in most instances, provide that the shareholder is responsible for most repairs of items inside an apartment and the co-op is responsible for repairs to items outside the apartment, including items such as pipes located behind the walls of the apartment.”
Which items inside the apartment are the shareholder’s responsibilities? Schneider says these repairs are usually restricted to “interior walls, floors and ceilings, but excluding windows, window panes, window frames, sashes, sills, entrance doors, frames and saddles.” Furthermore, most proprietary leases specify that shareholders are responsible for appliances, including “the maintenance, repair, and replacement of plumbing, gas, and heating fixtures, and equipment and such refrigerators, dishwashers, removable and through-the-wall air conditioners, washing machines, ranges, and other appliances.”
Even with this language in the proprietary lease, often disputes arise when it is unclear whether the item damaged is technically “interior” or “exterior.” Schneider says there are two cases that help clarify these types of disputes: Franklin Apartment Associates v. Westbrook Tenants Corp., and Machado v. Clinton Hous. Dev. Co. “The courts have essentially established the following test to determine the answer: if it requires the destruction of the wall to make the repair, it is the co-op’s responsibility,” explains Schneider.