When you own a New York City apartment, some things inevitably need fixing. It can be difficult to know what are you responsible for, and what your building is on the hook for. For example, you may need help figuring out who’s accountable if the windows need to be replaced. Or what the board's role is if there’s water damage from a neighboring apartment.
Answers to these questions depend on whether you own in a co-op or a condo building. A co-op building is structured as a corporation with a board of directors, so instead of receiving a deed, as you would in a condo, you become a shareholder. As a co-op owner you sign a proprietary lease, an agreement that has similarities to a lease in a rental building.
In addition, for New York City renters, there's a set of rules called the warranty of habitability that details the services a landlord must provide in order to keep the building and apartment safe and livable at all times. These rules also protect co-op owners. However, there's no warranty of habitability between the board and the unit owner in a condo.
Here are some of the most contentious maintenance issues and guidance on who typically is responsible for them.
In a co-op, a shareholder's responsibilities are spelled out in the proprietary lease. Attorney Marc J. Luxemburg, a partner at Gallet Dreyer & Berkey, says a good guide is to use what he calls "the rule of thumb nail." If you put your thumb nail against the wall and wiggle it into the plasterboard, you can get it a fraction of an inch into the wall. That's about as far as the shareholder's responsibility goes. "Anything you can touch with your finger or finger nail is a shareholder's responsibility," he says.
So the structure of the window and the maintenance of the outside is typically the responsibility of the board but the shareholder will have responsibility for maintaining the painting and decorating on the inside.
"Nine times out of 10, windows are the responsibility of the co-op," says attorney Andrew Freedland, a partner in Herrick's real estate department. He is dealing with exactly this issue for a client and says in most cases if the window frames are in disrepair, a co-op board has a responsibility to maintain them. However, the majority of co-ops were converted in the 1970s and 1980s, and in some cases the proprietary lease has been updated. If your lease has been amended, the responsibility may have been transferred to the shareholders.
Freedland's colleague, attorney Deborah Koplovitz, a partner in Herrick's litigation department, says it's important to remember that New York's warranty of habitability doesn't provide for all situations involving a window. The co-op board has a responsibility to make sure the apartment is fit for human habitation but isn't responsible if damage is caused by the tenant. For example, if a resident throws a bottle and it breaks the window, the co-op wouldn't be responsible. "There will be a defense to that," she says.
If the window is scratched or discolored in some way, the damage would not fall under the warranty of habitability. "It has to be a real health and safety issue," Koplovitz says.
If there's a plumbing issue that's unrelated to a fixture within the apartment, in most cases the responsibility for the repair will fall on the co-op board. Again, you'll want to take a look at your proprietary lease to make sure. "If it is inside the building walls it's a co-op's responsibility under the lease. If it's outside of the walls—if it's the faucet, if it's the toilet fixture, if it's the sink—nine times out of 10 it's a shareholder responsibility," Koplovitz says.
Here's a scenario Koplovitz has dealt with: The building says the water is going to be shut down for a period of time for maintenance and all faucets should be turned off. Perhaps you turn them on by accident forgetting there's no water. You leave the apartment and while you're out, the water gets turned back on. The open faucet floods your apartment and your neighbor's in the line below you. The co-op might help you with getting in a dryer as a courtesy but Koplovitz says, "that flood damage and all the resulting damage is going to be the shareholder's problem."
That's why it's important to have homeowner's insurance. Freedland says a standard '80s style lease does not typically have a requirement that shareholders get insurance but it's one of the most frequently requested proprietary lease amendments.
But what if you're the neighbor in the scenario above and the shareholder who's responsible is being slow to make repairs? Perhaps you're worried there's mold growing in the walls. Ian Brandt, a partner at Wagner, Berkow & Brandt (and a Brick Underground sponsor) says in some cases it's sensible for a board to assume responsibility for basic repairs: “The passage of time is liability and money," he says, and recommends boards fix problems first. If they can pass on liability later, they can always take that route.
Brandt's view is that co-op boards have big insurance policies and should be putting them to use. That's not to say the responsible shareholder won't ultimately end up paying, but the board also has a responsibility under the warranty of habitability to make amends for affected neighbors.
Again the situation is different for condos: In a condo you either have to fix it yourself and sue a culpable neighbor or board later. However, to be successful, you'd need to prove negligence on their part.
Paint and wallpaper
Landlords—and by extension co-op boards—are required to paint or cover an apartment’s walls with wallpaper. Your apartment walls should not be exposed sheetrock. Very often the proprietary lease will, however, say shareholders are responsible for painting.
Perhaps the remedial mold work from your neighbor's water damage requires a hole to be made in your wall. A co-op board has a responsibility to make sure the wall is properly repaired and painted. Are they required to rehang your expensive wallpaper? No. You'll likely get a coat of primer.
As a shareholder in a co-op, it's possible you could call 311 and get a violation against a board if the paint or wall covering in your apartment is bad shape. Koplovitz says co-op boards are legitimately annoyed when this happens "because that's not in the cooperative spirit."
"The legal codes don't supersede the proprietary lease," Luxemburg says, so what might happen is the co-op board will, if forced to by the courts, paint your apartment to meet the code but then charge the shareholder for the work. You might even have to pay the legal costs.
Koplovitz says in some co-ops, there are shareholders that have a tenant mentality. "Maybe they bought when they were tenants and they stayed through the conversion," she says. For those residents, she says having good communication with management is important. It's also helpful to educate shareholders about what is their responsibility under the lease, and what is not.
These are not issues that are relevant to condo owners. When you buy a condo you own the property. However, if you rent out your condo and become a landlord, you'll have obligations to your tenants under the warranty of habitability.
Electric wires, steam risers, and your front door
If you're using the "rule of thumb nail" to determine who is responsible for what, Luxemburg points out there are a couple of exceptions.
The first: Electric wires in your walls. You might not be able to physically touch the wiring but it is typically a shareholder's responsibility. This means, if you change any of the electrical systems in your apartment, you take responsibility for the quality of the work.
Another exception in prewar co-op buildings is the steam riser. These are pipes that are very often exposed and run from floor to ceiling to release steam from the boiler. The maintenance and repair of these risers is a co-op board's responsibility.
The front door of your co-op is another exception. "It belongs to the board," Luxemburg says, although the painting and decoration falls on the shareholder. The door must be fitted with a standard lock but if the shareholder adds a second, for additional security, that is not the board's responsibility.
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