“Assuming that there is no provision in the co-op’s proprietary lease making chimney maintenance the tenant-shareholder’s responsibility, I would say that the co-op (the apartment corporation) is clearly responsible for chimney maintenance,” says Stanley M. Kaufman of Kaufman Friedman Plotnicki & Grun, LLP in New York City. “Under the typical proprietary lease, the lessee is responsible for interior repairs, or repairs within the walls of the apartment. Since chimneys (as distinguished from the fireplaces themselves) are not within the interior walls of the apartment—although perhaps a creative argument can be made that they are—the co-op should be responsible for their maintenance. This conclusion is supported by common sense (would a co-op want a shareholder to be responsible to hire workers who would have to work on the roof or other exterior portions of the building?) as well as the fact that the New York City Building Code imposes various chimney maintenance obligations upon the building owner, and in certain instances upon an adjacent building owner who is constructing or enlarging its building to make it higher.
“The question of who is responsible for the repair or replacement of windows is governed by the co-op’s proprietary lease. While the standard residential proprietary lease imposes upon the co-op the obligation to repair and replace windows, in some co-ops that we have represented, particularly in loft buildings, the lessee (the tenant-shareholder) is expressly made responsible for window repair and replacement. It should be noted that the co-op, as owner of the building, is ultimately responsible for complying with building and housing maintenance code requirements regarding windows, and the co-op may not avoid its responsibility for code compliance. However, as between the co-op and its shareholders, the proprietary lease may allocate these responsibilities to the shareholders.”