Who Bears Responsibility For Required Condo/Co-Op Apartment Repairs?

In cases where building management and the unit owner disagree on who bears responsibility for making the repairs and/or who bears the repair costs, the attorney's role...
United States Real Estate and Construction
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In cases where building management and the unit owner disagree on who bears responsibility for making the repairs and/or who bears the repair costs, the attorney's role, whether in representing the cooperative or condominium board on the one side or the opposing apartment shareholder or condominium residential or commercial unit owner on the other, is to focus on the several important tasks, discussed here.

New York courts hold that repairs to the interior of residential apartments, or to the commercial space of a building, and to all plumbing therein, whether it be a condominium unit or a cooperative apartment, are the responsibility of the individual apartment unit owner or commercial unit owner, as the case may be. See, e.g., Davis v. Prestige Management Inc., 98 AD3d 909, 951 NYS2d 147 (1stDept. 2012) (Held: "the condominium's bylaws provide that repairs and replacements to the units are the responsibility of the unit owners").

The condominium unit owner's or cooperative shareholder's specific repair obligations are respectively set forth in the condominium's declaration and by-laws or in the cooperative's offering plan, proprietary lease, and by-laws. See, e.g., Lorne v. 50 Madison Avenue LLC, 65 AD3d 879, 886 NYS2d 1 (1stDept. 2009) (Held: "It was not unreasonable for the board to require plaintiffs to adhere to the same rules that apply to all other unit owners wishing to make structural repairs.").

The Attorney's Role

In cases where building management and the unit owner disagree on who bears responsibility for making the repairs and/or who bears the repair costs, the attorney's role, whether in representing the cooperative or condominium board on the one side or the opposing apartment shareholder or condominium residential or commercial unit owner on the other, is to focus on the following important tasks: First, to carefully scrutinize ALL of the governing documents, to be certain of what rights and obligations the respective parties may either assert or contest, in relation to a board's business judgment obligations, see Matter of Levanduskey v. One Fifth Avenue Apartment Corporation, 75 NY2d 530 (1990).

Second, to engage qualified forensic expert architects and engineers (a) to inspect the physical premises involved, (b) to provide credible expert opinions to support the interests of the attorney's clients, and (c) to show how the physical evidence conforms or does not conform to the specifications of the governing documents.

Determining 'Interior' Space From the Common Elements

Determining what is "interior" to the co-op apartment or to the condominium unit (whether residential or commercial) is not always self-evident. Cases abound, such as Silverman v. Milford Management Corp, et al, 2023 WL 6153731 (Table), 2023 N.Y. Slip Op. 50992(U) (Sup. Ct., App. Term, 1stDept., 2023), where the court held "the evidence supports the trial court's finding that the condominium bylaws require plaintiff unit owner to bear the repair cost for any damages occurring in her unit...caused by a ruptured pipe under her kitchen sink") (Emphasis added).

However, cases like Perlbinder v. Board of Managers of the 411 East 53rdStreet Condominium, 2016 WL 1597761 (N.Y. Sup.) (Trial Court), Affirmed, 154 AD3d 467, 62 NYS3d 110 (1stDept. 2017), Leave to Appeal Denied, 30 NY3d 910, 71 NYS3d 3 (2018), where the question was whether the damaged areas of a garage unit were part of the condominium common elements, and, therefore, the responsibility of the condominium board, or whether the damaged areas were entirely within the garage unit and, therefore, the responsibility of the garage unit owner, require more intensive examination of the physical structure of the building and of the unit's physical location within the building, before responsibility for the specific repairs required can be determined.

In Silverman, supra, it was not difficult for the court to find, on the evidence, that the repair of a leak, caused by a ruptured pipe under the plaintiff's kitchen sink, was the responsibility of the plaintiff unit owner.

However, in Perlbinder, supra, the key issue was whether the structural slabs of the garage, "which includes the ramp from the cellar to the sub-cellar level of the garage, and serves as a partition separating the two stories of the garage," were "inherently part of the condominium structure as a whole" 2016 WL 1597761, at *6, and, therefore, a common element to the extent "not expressly included as a part of the a unit." (Id.). The answer to that question depended on whether the concrete slabs of the garage ramp served as "a bracing function with respect to the exterior foundation walls located at the perimeter of the Garage Unit." (Id., at *7).

To decide the question, the court carefully examined the sworn testimony given by the engineers of both the board and of the garage unit owner. In relating their respective testimony to pertinent parts of the condominium declaration, the court concluded that:

the slab separating the two floors of the Garage, including its interior rebar and concrete, is located within the interior surfaces of the walls and ceilings of the Garage Unit and is expressly, by definition, part of the Garage Unit and excluded from the definition of a Common Element. Moreover, the [affidavit of the Garage Unit's engineer] makes clear that the ramp does not support the Building because it is not on one level, i.e., has different elevations, [and] [t]his is consistent with the testimony of . . . the Board's engineer, who testified that only a "portion" of the slab in the Garage was necessary to make it effective as bracing for a column... Moreover, there is no evidence that the ramp is used by anyone except the Perlbinders' Garage. (Id., at *12) (Emphasis added).

Accordingly, the court held:

The slab is expressly included within the Garage Unit, pursuant to the description of its boundaries in [the declaration], is a partition separating its two floors, and is not a Common Element, [as defined in the declaration]. There is no question that the portions of the slab within the boundaries of the Garage Unit are exclusively used by the Perlbinders and are not for the common use of the other Unit owners. Nor does the ramp provide support, a fact admitted by the Perlbinders' expert. (Id., at *13) (Emphasis added).

Likewise, in cases of fire or other casualties that cause widespread damage to a condo or co-op building, determining whether a fire or flood originated "within the 'common elements' or an area considered part of [the apartment unit]," is also likely to be litigated. See, e.g. Onetti v. The Gatsby Condominium, 111 AD3d 496, 975 NYS2d 27 (1stDept. 2013). As noted below, the result is likely to determine whose insurance company pays to repair the damage.

When the Building Owner is Responsible for Interior Repairs

Although a condominium or cooperative board's repair responsibilities are generally limited, by their governing documents, to repairing common elements of the building, the owner of the building (whether the sponsor of the condo or co-op involved, or the cooperative board of directors or condominium board of managers) has a nondelegable duty to the unit owners to keep the building in good repair.

The building owner's nondelegable duty is rooted in Multiple Dwelling Law, §78(1), which provides that "[e]very multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair."

In Liberman v. Cayre Synergy 73rdLLC, 108 AD3d 426, 970 NYS2d 6 (1stDept. 2013), the court held the sponsor liable for having breached that duty by installing a roof that did not render the condominium watertight, and which caused damage from water infiltration into plaintiff's unit.

Similarly, in Smith v. Parkchester North Condominium, 163 Misc.2d 66, 67, 619 NYS2d 523 (NYC Civil Ct., Bronx Co., 1994) (94-607, HP 821/94), the court explained that, in addition to Multiple Dwelling Law, §78(1), the New York City Housing Maintenance Code §27-2004 (a)(45) "broadly defines the term owner and clearly reflects that the owner of the premises bears the legal responsibility of correcting violations," and that "Multiple Dwelling Law, §78(1) parallels [New York City Housing Maintenance Code §27-2005] in holding the owner responsible for keeping the property in good repair....and removing existing violations which are within his control and consistent with the bylaws of the condominium." (Emphasis added).

In addition to repairs required for leaks or other faulty maintenance issues, a co-op or condo board may be held liable for repairs required within an apartment that are necessitated by fire or other events deemed "casualties" under the co-op or condo governing documents, and to which the building's and not the unit owner's insurance coverage may apply. See, e.g., 45 Broadway Owner LLC v. NYSLA-ILA Pension Trust Fund, 107 AD3d 629, 970 NYS2d 1 (1stDept. 2013), appeal denied, 22NY2d 852 (2013).

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Originally published by New York Law Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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