The only thing more aggravating than having a pipe burst in your co-op in the middle of the night may be the question of "Who is responsible for the repair?" The proprietary lease generally governs who is responsible, and different leases will have different language. It seems easy, right? Unfortunately, this is not always the case.     

Generally, whether a shareholder is liable is dependent on the location of the leaking pipe. This is not always clear-cut, however—and the answer as to whether the shareholder is responsible is sometimes ambiguous. Any ambiguities in the proprietary lease are construed against the corporation, which drafted the lease.

Shareholder or Building Board?

Generally, proprietary leases provide the shareholder is responsible for repair of pipes within the interior four corners of the walls, ceiling or floors of the apartment. The corporation is liable for within the walls, if the issue in question is part of a building-wide system or within the common area. Conflicts may arise where the pipes are attached to fixtures inside the unit or if the shareholder made an installation of some kind inside the walls. Since a co-op involves a landlord/tenant-like relationship, the statutory warranty of habitability also applies. This warranty of habitability cannot be waived by means of the proprietary lease; nor can the Multiple Dwelling Law. If there are three or more residential units in the building, it is a multiple dwelling. For reference, Multiple Dwelling Law Section 78 provides that, "the owner of a multiple dwelling is responsible for keeping the dwelling in good repair."

Who is responsible for a repair? In Goode v. Bay Tower Apartments Corp., a water pipe burst that had been concealed in an apartment wall. The building's pipes were known to be in a deteriorated condition. The building had a history of not attending to routine maintenance. The tenant alleged another pipe burst in her last apartment. So did other pipes in the building. The landlord made repairs after the fact and did not perform routine maintenance. The court found that the co-op had actual notice of the deteriorated condition of the building pipes and constructive notice of the apartment’s deteriorated plumbing. Negligence was found under the doctrine of res ipsa loquitor. Latin for ('the thing speaks for itself'), this gives rise to a permissible inference of negligence, which must be rebutted. There is a presumption of prima facie negligence from the circumstances.